News From the Courts - AAO Rules Film Director Entitled to H-1B

USCIS’ Administrative Appeals Office has issued a decision overturning the denial of an H-1B petition filed with the USCIS’ California Service Center for a film director. The petitioner in the case was “an action film entertainment company involved in film, television and video motion capture production.”

The CSC had argued that the position did not qualify as a specialty occupation. The AAO first reviewed the definition of specialty occupation found in the Immigration and Nationality Act and in the Federal Regulations.

Section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act. A “specialty occupation” is one that requires

“(A) theoretical and practical application of a body of highly specialized knowledge, and

(B) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States .”

Title 8 C.F.R. 214.2(h)(4)(iii)(A) requires for H1B petitions involving a specialty occupation to meet one of the following criteria:

• A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
• The degree requirement is common to the industry in parallel positions among similar organizations;
• The employer normally requires a degree or its equivalent for the position; or
• The nature of the specific duties are so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

AAO also noted in the decision that the term “degree” means not just a bachelors or higher degree, but one in the field that is the subject of the H-1B petition.

The H-1B application included the following job duties to show that the beneficiary would be a film and video director in charge of all production activities of the cast and crew in the task of translating the concepts, actions and ideas in the script into cinematic/video images and sound:

• Interpret a screenplay to the screen in such a matter that an entertaining and commercial story is told with a consistent point of view;
• Communicate with actors and camera personnel to determine the best shot to present a story line and ensure that all story elements are translated to the screen in an entertaining style;
• Work with the producer in the development of the script and in the packaging of the project with acting talents;
• Work with the producer in selecting actors for projects;
• Select an assistant director;
• Select all set operations personnel, including makeup artists, costume designers, motion capture operators, computer operators, fight choreographers, and stunt actors;
• Survey and select film locations;
• Make changes to the script to fit production limitations;
• Communicate with the screenplay writer to make changes to adapt to the screen;
• Work out all camera angles for each scene and direct camera movement;
• Supervise and/or determine the wardrobe and makeup to be used;
• Supervise and select the placement of props and set dressings as such relate to the dramatic interpretation of the story and the photographic perspective as far as size, color and texture;
• Cast the picture or supervise casting;
• Work with actors in blocking their actions prior to filming;
• Direct the action and performance of all on-camera talent in such a way that their performances maintain story and action continuity;
• Delegate the direction of extras and background talent to assistant directors;
• Direct the intensity and placement of special effects in cooperation with the special effects team during motion capture projection;
• Supervise second units for rehearsal and shooting;
• Check the framing and composition of the image through the camera when desired;
• Direct all rehearsals of talent, motion capture crew, camera, sound, effects, background atmosphere, etc.;
• Give cues during filming;
• Place the teleprompter, if used, and direct dialog;
• Watch dailies and select preferred angles; and
• Supervise the first cut of the picture/video.

The petitioner required a bachelor’s degree in film production or a related field for the position.

The AAO cited the Occupational Outlook Handbook (the “OOH”) noting that directors follow many paths into their field. Employers generally look for people with “the creative instincts, innate talent, and intellectual capacity to perform.” The AAO noted that in television and film, actors and directors typically start in smaller television markets or with independent movie production companies and then work their way up to larger media markets and major studio productions.

The OOH does not state that a bachelors degree is a minimum requirement for entry into acting or directing. However, in this particular case, the duties of the position were

“so specialized and complex that knowledge required to perform them is usually associated with the attainment of a baccalaureate or higher degree. Much of the work performed by the petitioner involves the transformation of live-action (photographed “reality”) into special effect animated digital media. That process utilizes “motion-capture,” a process involving computerized capturing and digitizing of live-action for the purpose of integrating this information into video game development and Internet applications.”

The AAO found that motion-capture is an area of expertise that requires the use of specialized equipment and personnel and that the beneficiary would be in charge of all areas of project production and development, including editing the final product. Consequently, the position is, in fact, a specialty occupation for purposes of H-1B determination.

The beneficiary was found to have a Master of Fine Arts degree in Motion Picture, Television and Recording Arts which was closely related to the job duties.

The H-1B denial was reversed and the petition approved.

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