I remember when I first downloaded Instagram on my iPhone. Like many others, I instantly fell in love with the app. Even if I was in my office in Manhattan on a freezing cold gray winter day, with Instagram I could be transported to a new restaurant in Mexico City, an art exhibit in Buenos Aires, or an oceanside bungalow in the Maldives (preferably sipping a delicious beverage). Sure, not all the photos in my feed were so glamorous or exciting—I still got plenty of food photos from my friends and family (looks delicious, mom!)—but, as trite as it sounds, Instagram opened a whole world of sights, people, and experiences (not to mention memes).
And thanks to Instagram and other social media platforms, we have influencers and content creators, two professions that have always existed in some form but not quite in the same powerful way as they do now. In this post, we’ll discuss US visa options for social media influencers and content creators looking to expand their horizons to the US. As always, this is a general post for informational purposes only. Any influencer or content creator should DM aka consult a qualified immigration attorney to discuss their specific situation.
O-1B Can Be a Good Option
One of the best options for foreign national influencers and content creators to work and live in the US may be an O-1 visa. Though commonly referred to as the “artist” visa, the O-1 is for individuals who possess extraordinary ability in any field. Specifically, the O-1A is for individuals with extraordinary ability in the sciences, education, business, or athletics, while the O-1B is for individuals with extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry.
A skilled immigration attorney can make an argument for an O-1 in a variety of professions, including for sommeliers, fragrance experts, chefs, marketing directors, and, yes, even influencers and content creators. Since creativity and storytelling are key components in the work of influencers and content creators, they would arguably fit in the O-1B category as an artist.
Influencers and content creators seeking an O-1B visa must be sponsored by a US-based company or agent, and must demonstrate extraordinary ability through sustained national or international acclaim. US Citizenship and Immigration Services (USCIS) explains that extraordinary ability in the field of arts means distinction:
Distinction means a high level of achievement in the field of the arts. This is evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that you are prominent, renowned, leading, or well-known in the field of arts.
This can be demonstrated with significant national or international awards or prizes won in a particular field or with evidence of at least three of six criteria specified by USCIS. Influencers or content creators could arguably qualify for an O-1B using as evidence their high number of followers, posts with significant engagement, press coverage in national and international publications, sponsorship and advertising contracts or agreements with prominent brands and celebrities, testimonials from experts in the field, lesser awards, and evidence of high earnings for their work. An influencer or content creator, depending on exactly what kind of posts they produce and their advertising partnerships, would likely fit nicely under a brand ambassador role or in a business development or marketing role.
While the O-1 may be an exciting option, over the years we’ve seen misconceptions about this visa type—we even wrote a whole post about it! It will be good to keep these misconceptions in mind for those exploring the O-1 more in depth.
E-2 for Influencers Who Want to Invest in a Company in the US
The E-2 treaty investor classification may be a good option for influencers and content creators who invest in a US business. To qualify, influencers and content creators must be nationals of foreign countries with which the US has a treaty of commerce and navigation and are coming to the US to invest, or be actively in the process of investing, a substantial amount of capital in a bona fide US enterprise and be coming to the US solely to develop and direct the investment enterprise. “This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device,” USCIS states.
In other words, to be granted this classification, E-2 investors must be coming to the US with the intention of significantly investing a large amount of capital into an American enterprise over which they will then exercise control. It is also very important that the investment in the enterprise will result in the creation of new jobs. If influencers or content creators are making, or plan to make, significant investments in a US agency or marketing or entertainment company, the E-2 is worth considering.
The E-2 has some significant advantages including the option of direct filing with a US Embassy/Consulate abroad, meaning that applicants will not have to first receive approval from USCIS in the US. E-2 investors are allowed a maximum initial stay of two years with extension requests granted indefinitely in increments up to two years each. There is no requirement for prior work experience or that the applicant hold academic degrees. Nor are there quota limitations, meaning that there is no “cap” on the number of E-2 visas that can be granted on a yearly basis.
H-1B Might Be Appropriate for Some, But the Annual Cap Complicates Things
The H-1B visa is likely not the best option for influencers and content creators, but it might be worth considering in certain circumstances, particularly if the influencer/content creator is a brand ambassador and working in-house at a company and has a relevant degree. The H-1B is a nonimmigrant visa for foreign nationals who will be employed temporarily in a “specialty occupation,” which is defined as one that requires a bachelor’s degree in a specific field, or the equivalent experience, to perform the duties of the position offered. H-1B petitions are granted for up to three years at a time, for a maximum of six years.
Architects, graphic designers, accountants, lawyers, engineers, and computer programmers are all common specialty occupations and, therefore, likely to be eligible for H-1B visas. Content creators, brand architects, or influencers who hold a bachelor’s (or equivalent) or higher degree in marketing, online digital media, or a field closely related to their role, and will work in-house for a US brand or company, likely in a marketing or digital content or business development role, might arguably qualify for an H-1B.
One of the biggest challenges with the H-1B is the cap—the annual limit of 65,000 new H-1B visas for those holding a bachelor’s degree (or equivalent) and 20,000 visas for those with an advanced degree from a US accredited educational institution. Because of the cap, and the high number of H-1B registrants in recent years, USCIS has only selected a small portion of H-1B registrants via the lottery system—thus many H-1B registrants, even though they are good candidates for this visa type, are disappointed. Only US Congress has the power to increase the H-1B cap numbers, and there is no sign that they will adjust these numbers anytime soon.
E-3 Option for Australians—No Cap Numbers!
For influencers and content creators who have Australian citizenship, you are special (and not just because your country has amazing coffee)! Australians holding at least a bachelor’s degree with a legitimate job offer in the US who will perform services in a specialty occupation related to their degree may be eligible for an E-3. Unlike an H-1B, there is no annual cap!
Like the H-1B, content creators, brand architects, or influencers who hold a bachelor’s (or equivalent) or higher degree in marketing, online digital media, or a field closely related to their role, and will work in-house for a US brand or company, likely in a marketing or digital content or business development role, might arguably qualify for an E-3. An E-3 petition can be filed directly at a US Embassy/Consulate abroad without first applying with USCIS in the US. E-3 visas are valid for an initial two years, with two-year extensions available.
B-1 Visa or Visa Waiver Program/ESTA for Meetings, Not for Paid Work in the US
In certain circumstances and depending on their nationality, influencers and content creators could travel to the US under a B-1 visa or under the Visa Waiver Program (VWP).
B-1 Visa
A B-1 visa is a temporary nonimmigrant visa to travel to the US to engage in unpaid business activities with an initial stay of up to six months. Influencers and content creators may be eligible for a B-1 visa if they will be participating in unpaid business activities of a commercial or professional nature in the US, including for 1) meetings or consultations with business associates; 2) attending an educational, professional, or business convention or conference; or 3) negotiating a contract.
Foreign national influencers and content creators must establish they are not working in the US and demonstrate the following to ensure they are eligible for a B-1 visa:
The purpose of the trip is to enter the US for business of a legitimate nature.
The trip is for a specific and limited period of time (with an initial stay of no more than six months).
They have sufficient funds to cover the expenses for the trip and their stay in the US.
They have a residence outside the US that they have no intention of abandoning, as well as other binding ties that will ensure their return abroad at the end of the visit.
They are otherwise admissible to the US.
It's important to note that the B-1 visa is not a digital nomad visa—the US does not have such a visa. Influencers and content creators in the US under a B-1 visa must not do any productive or paid work or undertake paid performances while in the US. If the B-1 visa holder engages in activities or employment prohibited under the B-1 visa they may face serious immigration consequences. Those interested should consult a qualified immigration attorney to review the parameters of the B-1 with respect to their intentions in the US.
Visa Waiver Program/ESTA for Stays up to 90 Days
The Visa Waiver Program (VWP) enables nationals of forty-one (41) participating countries to travel to the US for tourism or business and stay in the US for up to ninety (90) days or less without obtaining a visa. For those nationals that qualify, traveling under the VWP is much simpler than applying for a B-1 visa.
Nationals of VWP countries must meet eligibility requirements to travel without a visa on the VWP, including:
Traveling for purposes permitted on a visitor B visa.
Holding an e-passport that is valid for at least six (6) months after the planned departure date (unless exempted by country-specific agreements).
Not having traveled to or been present in certain countries listed here.
Hold a valid authorization through the Electronic System for Travel Authorization (ESTA). DHS recommends applicants apply at least 72 hours before departure. Unless revoked, travel authorizations are valid for two years from the date of authorization, or until the foreign national’s passport expires, whichever comes first.
Like a B-1 visa, eligible influencers and content creators can travel to the US under the VWP to participate in meetings or consultations with business associates, attend an educational, professional, or business convention or conference, or negotiate a contract. As with a B-1 visa, travelers who enter under the VWP are not permitted to do paid work in the US or undertake paid performances. It's recommended for influencers and content creators considering coming to the US under the VWP for business purposes to consult with an experienced immigration attorney.
Thank You for All the Scrolling
Many of us have spent countless hours (mindfully and thoughtfully, obviously) going through social media, eagerly planning our next trip, meal, or purchase, or enjoying some entertainment or learning something new, often thanks to popular influencers and content creators. For those influencers and content creators who want to come to the US, we’ve outlined some good options. Now I’m going to go ahead and post my lunch photo on Instagram. Hey, the camera always eats first.