Foreign talent forms an important part of the US fashion and design industry. Design and fashion houses in the United States rely on the highly-developed skills and creative ideas of foreign talent in a variety of fields, including design, modelling, marketing and production. Recruiting foreign talent requires prospective US employers to sponsor talented foreign nationals for immigration benefits. The range of options vary based on the type of employer and the foreign national's skills, experience, education and nationality. However, the most common avenues for employers to recruit foreign talent in the US fashion and design industry involve sponsorship in the H-1B or O-1 visa categories with US Citizenship and Immigration Services (USCIS).

Whether a US employer is looking to recruit a fashion designer at Tom Ford, marketing executive at Dolce & Gabbana, user experience designer at Chanel, or jewelry designer for Marc Jacobs, the H-1B visa provides countless options for recruiting foreign professionals in the fashion and design industry. The H-1B visa is a nonimmigrant (temporary) classification available to employers seeking to hire foreign nationals in specialty occupations or as fashion models of distinguished merit or ability. Fashion designers, creative directors, marketing professionals, software developers, art directors, graphic designers and many more occupations may qualify specifically under the H-1B specialty occupation category, which requires at least a bachelor’s degree in a specialised field or equivalent work experience.

Unlike the H-1B specialty occupation category, the H-1B3 category for fashion models does not require a bachelor’s degree or its equivalent. Instead, the employer must show that the position offered requires prominence and that the foreign national is a fashion model of distinguished merit and ability. Distinguished merit and ability in fashion modelling is determined by prominence and requires the employer to show that the fashion model is renowned and has obtained a high level of achievement that is substantially above that normally encountered.

Although there are exceptions, typically an H-1B visa is initially granted for three years and may be extended for a maximum of six years in H-1B status. Initial H-1B visa petitions are subject to an annual cap and the prospective employer must first undergo a registration process, whereby only those employer registrations that are randomly selected, may file the H-1B visa petition on behalf of the foreign national with USCIS. Congress sets the annual cap for the cap-subject H-1B category at 65,000 visas. In this past fiscal year (2022/23), USCIS received 483,927 H-1B registrations. The registration period for this fiscal year (2023/24) closed in March.

Another option for recruiting crucial foreign talent in the US fashion and design industry is the O-1 visa. The O-1 nonimmigrant visa is available to foreign nationals with extraordinary ability in the sciences, arts, education, business, or athletics. To qualify, the employer must show that the foreign national has sustained national or international acclaim in their area of expertise. The O-1A category applies to those with extraordinary ability in the sciences, business, education or athletics, while the O-1B category applies to those with extraordinary ability in the arts.

Business executives within the fashion and design industry may benefit from the O-1A category by demonstrating extraordinary ability in business.

Under the O-1A category, extraordinary ability means that the foreign national is one of the small percentage who have risen to the very top of their field.

Fashion designers, creative directors, fashion models, photographers, prominent fashion influencers and other professionals may qualify under the O-1B category as individuals with extraordinary ability in the arts. The O-1B category requires distinction, which is a high level of achievement as shown by skill and recognition substantially above that ordinarily encountered.

The O-1 visa is initially granted for three years and can be extended indefinitely in one-year intervals. The broad and creative nature of the O-1 visa categories provides employers with flexibility to recruit a variety of highly-skilled foreign talent in the fashion and design industry.

Although the H-1B and O-1 visa categories provide the most common avenues for US employers to recruit foreign talent in this industry, options for investors, self-petitioners and those seeking permanent relocation to the US are also available.

Norka S. Lecca is an associate with Foley & Lardner, based in the firm’s Miami office, where she is a member of the firm’s Immigration, Nationality & Consular Law and Government Solutions Practice, focusing on business-related immigration issues. She can be reached at [email protected].