In an ever-developing world that is constantly changing, new jobs often develop out of thin air and become multi-million-dollar industries. Traditional jobs still exist, but coupled with endless globalization and the rise of technology, there has been an onslaught of novel careers. One such new arena has taken the world by storm, as it is the most public-facing profession and one we cannot fathom a world without. In fact, Gen Alpha’s simply cannot comprehend its non-existence, as they were born simultaneously with its birth and growth. Of course, I am referring to new age Influencers and their reach across social media platforms.
The Merriam-Webster dictionary defines an Influencer as “one who exerts influence [or] a person who inspires or guides the actions of others.” Otherwise stated, an Influencer is one who motivates other individuals to act in a certain way. Whether it’s through sharing various products in an Instagram post or through exhibiting certain brands on a TikTok video, no one can argue the effect that social media has on the general public. One of the tremendous outgrowths of social media, which is often taken for granted, is the fact that people can interact, connect, and even influence others across the world. By way of example, an Influencer from London can take a picture in Miami advertising a new product and post it on Instagram while on vacation in New York, which guides an individual from Paris to purchase that product while on a business trip in Sydney. Although this may feel like a riddle, it is a constant occurrence that is manifested daily.
However, what is often overlooked is whether that individual from London is permitted to issue that posting while in New York under the laws of the United States of America. After all, Influencers are often paid per post, thereby altering their actions from simply sharing their experiences to actual work, as receiving monetary compensation for their actions is, unambiguously, the definition of work itself. The same concept applies across all platforms, including vlogging on YouTube and streaming on Twitch. The notion of traditional work has changed – if an individual receives renumeration of any kind related to a post, it will most likely be considered ‘working.’ With that understanding and recognizing that photos and videos are time/place stamped and easily traceable, it is crucial that every individual who is compensated for their actions on the “gram” or any other platform, understand that they must be compliant with the relevant U.S. laws and regulations.
U.S. immigration law, compounded by evolving policies and politics, is one of the most complex areas of jurisprudence. Despite its inefficiencies and outdatedness, it sometimes grows with the world and reacts to new, sprouting industries. As a result, U.S. immigration officials are often trained on what constitutes work in the United States as it relates to these new fields, including social media marketing and influencing. Thus, independent Influencers, and businesses seeking Influencers, need to ensure that the individuals tasked with the postings are authorized to work in the United States. Otherwise, they may face the wrath of the Department of Homeland Security’s immigration reprimands, which can include civil and criminal penalties for the employer/sponsor or even deportation or a bar to entering the United States for the Influencer.
Luckily, there are options for Influencers and avenues by which they can obtain the necessary authorization so the London-based Influencer from the example above can take that photo in Miami and post it while in New York without running afoul of any immigration laws. More specifically, the best, and often the most pursued, option for an Influencer includes applying for a temporary O-1B work visa.
The O-1B visa is a temporary, nonimmigrant endorsement that permits foreigners to work in the United States for an initial three-year period. Receiving an O-1B visa includes having an offer of employment in the United States (or several offers of employment from multiple sources, along with a third-party Agent), and convincing U.S. immigration officials at the United States Citizenship and Immigration Service (USCIS) within the Department of Homeland Security that you are a person of ‘extraordinary ability’ in the arts. Showcasing that you have achieved a level of ‘extraordinary ability’ requires demonstrating that you meet certain criteria, such as being nationally or internationally recognized, attaining commercial success, and commanding higher renumeration than others in your field, to name a few. To do so, an Influencer will be required to provide articles written about them, letters recognizing them for their achievements by other experts in their field, evidence of their high numbers of views, followers, and/or likes as compared to others, etc.
The O-1B is a great option, but like a shoe, there is not a one size fits all option when it comes to immigration. What is consistent, however, is the need for the proper authorization. So, if you are an Influencer, before you plan your next trip to the United States, be it to the sandy beaches in Miami or the concrete jungle of New York, don’t forget to contact an immigration lawyer so you don’t run afoul of any U.S. immigration laws. After all, these posts are generally public, and immigration officials, like ordinary citizens, are on social media and can be influenced too.
If you have any questions regarding your eligibility to enter the United States as an Influencer, or anything else related to U.S.-bound immigration law, please visit Wildes & Weinberg’s website, www.wildeslaw.com, or contact josh@wildeslaw.com.
Wildes & Weinberg P.C., perhaps the United States’ premier law firm concentrating in the immigration and nationality field, was established by Leon Wildes, in 1960, who is best known for his successful representation of John Lennon in his immigration deportation proceedings. Leon’s son, Michael Wildes, is now the firm’s Managing Partner and a Former Federal Prosecutor, as well as the Mayor of Englewood, New Jersey. His representation has included soccer icon Pele, supermodel Gisele Bundchen, renowned chef Jean Georges, singer-songwriter Boy George, and many more. Still, the firm treats all their clients with the same respect and fights for their rights with tenacity, scholarship, and experience, regardless of their notoriety. Michael’s son, and Leon’s grandson, Josh Wildes, is a third-generation immigration attorney in the firm, who previously served as an Attorney Advisor in the Department of Justice’s Executive office for Immigration Review prior to joining the practice. Josh’s client base includes various Influencers, esports professionals, and streamers, and he serves as an Immigration Consultant for Lost Tribe, a nonprofit focused on esports and content creation.
Over the past 60+ years, the firm has concentrated their practice in all aspects of U.S. immigration and nationality law, servicing the immigration needs of prominent American and International firms, banks, industrial, financial, and manufacturing concerns and law firms in connection with the personnel needs of their foreign national employees, including massive corporations with thousands of employees. In addition, they have a distinguished clientele and have done substantial immigration work for performing artists, influencers, directors, writers, models, actors, athletes, esports professionals, fine artists, art dealers, curators, streamers, and literary agents. The firm has been expanding its content creation and esports practice greatly, and represents a handful of teams, individuals, and organizations across various platforms and games/leagues.
Despite difficulties currently being encountered in dealing with U.S. immigration authorities, we have maintained an extraordinary track record for success in our cases. In addition, our entire staff is known for its experience and special expertise in processing each foreign national’s case with nothing less than the highest level of professionalism. Although we are based out of New York City, we also have offices in Miami, New Jersey, Los Angeles (by appointment only), and soon, Tel Aviv, Israel, and together with our multilingual and experienced staff, we represent clients throughout our great nation and the entire world.
For more information on this or any other type of visa or immigration inquiry, please visit www.wildeslaw.com or contact josh@wildeslaw.com.
By Josh Wildes, Esq., Associate Attorney at Wildes & Weinberg, P.C.