O-1 VISA

O-1 non-immigrant visas allow qualified individuals to live and work in the United States under an employment visa status. The visa is reserved for people of extraordinary ability in the sciences, arts (including television and motion picture industries), education, business, or athletics. O-1 petitions may only be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent on behalf of the foreign national beneficiary. It is not possible to self-petition in this category. Those who are self-employed should hire agents to file for the O-1 visa.

There are several different types of visas in the O category, including O-1A for individuals with an extraordinary ability in the sciences, education, business, or athletics; O-1B for individuals with an extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry; O-2 for people who will assist the O-1 holder in the specific event or performance; and O-3 for spouse or children of O-1 and O-2 holders.

O status can be filed by an employer in the U.S. for a foreign national when a work-related event or group of activities such as a scientific project, conference, convention, lecture, series, tour, exhibit, business project, academic year, or other engagement require that the foreign national travel to the United States on a temporary basis. Sometimes, a job may not have a specific engagement or project that exactly fits the above definition – the job may still be eligible but only if it is within the person’s area of extraordinary ability. However, an itinerary must be included with any O-1 petition to include the time frame and the description of the person’s work throughout the visa validity period.

The O visa is different from other employment related statuses – it applies to more types of work than other visa categories, such as H or L. For example, H-1B status is limited to professionals and cannot apply to athletes or entertainers as can O status. In addition, the O status is not subject to an annual quota such as the H-1B quota. Furthermore, the H and L categories have a limit on the number of years an individual can hold the visas and they cannot be extended indefinitely. Since USCIS grants O visas for time periods determined by the nature of the person’s work in the United States, it could be extended indefinitely, as long as the USCIS finds that it is necessary for them to continue to do the specific activity required by their employer.

Another important benefit of O status is that it gives foreign nationals subject to the two-year foreign residency requirement of the J-1 exchange visitor program an option to obtain an O visa abroad without fulfilling the two-year residency requirement or getting a waiver of the requirement, whereas that is not possible if they were to apply for H or L status before satisfying the J-1 requirements.

Although this category is a great option for those that qualify, you must take steps to prove your eligibility, and it is one of the most difficult visas to obtain approval for because of the high standards required from the applicants. Qualifications for O-1 status vary depending on the area of work, whether it is in the arts, sciences, or other field, but the extraordinary ability requires an individual to prove that he or she is at the top of their field.

• O-1A – Foreign nationals in the science, education, business, and athletic industries must show they are in the top of their respective fields. This can be established through evidence of a major receipt, or internationally recognized award, such as a Nobel Prize. Most people cannot show this type of award, but they can qualify for extraordinary ability through at least three of the following types of evidence:
  
  
  • Documentation of receipt of lesser nationally (not necessarily U.S.) or internationally recognized prizes or awards for excellence in the field of endeavor.
  
  
  • Documentation of membership in associations in the field of endeavor which require outstanding achievements of their members, such as judged by recognized national or international experts in their fields.
  
  
  • Published material in professional or major trade publications or in the media about the applicant and relating to their work in the field of endeavor.
  
  
  • Evidence of participation as a judge (individually or as a part of a panel) on the work of others in the applicant’s field.
  
  
  • Evidence of scientific, scholarly, or business related contributions of major significance in the field of endeavor.
  
  
  • Evidence of authorship of scholarly articles in the field, professional journals, or other major media.
  
  
  • Evidence of performance in a critical or essential capacity for organizations or establishments with distinguished reputations.
  
  
  • Evidence of having commanded a high salary or other significantly high remuneration for services in relation to others.
  
  
  • Other comparable evidence.
  
  
• O-1B (for foreign nationals in the arts, motion pictures, or television industries) – For the arts, the applicant must show that they have acquired distinction in their artistic field. Distinction means a high level of achievement as evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that the person is described as prominent, leading, or well-known in the field of arts. Distinction is a lower standard of proof compared with the O-1A category of business, science or education, and artists and performers will often find it easier to obtain the O-1B visa compared to applicants in the O-1A category. Foreign nationals in the motion picture or television industry must show a very high level of accomplishment evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent that the person is recognized as outstanding, notable, or leading in the industry. Under these standards, the requirements under the motion picture or television industry are somewhat higher than those for the arts. In either case, the forms of evidence to be used to establish the qualification are the same. The foreign national may establish qualification through evidence of nomination or receipt of a major, national or international recognized award such as an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award. Most applicants do not have such an award so they can establish themselves as a qualifying person through at least three of the following types of evidence:
  
  
  • Having been or will be performing a lead or starring role in productions or events which have a distinguished reputation (as evidenced by critical reviews), advertisements, press releases, publications contracts, or endorsements.
  
  
  • Critical reviews or other published material in professional or major trade publication or in the major media by or about the applicant which show that the applicant has achieved national or international recognition or achievements.
  
  
  • Evidence of performance in a lead, starring or critical role for organizations or establishments with distinguished reputations.
  
  
  • Evidence of a record of major commercial or critically acclaimed successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.
  
  
  • Evidence of significant recognition for achievements from organizations, government agencies, or other recognized experts in the field.
  
  
  • Evidence of having commanded a high salary or other significantly high remuneration for services in relation to others.
  
  
  • Other comparable evidence.

Whether the foreign national is outside of the United States seeking an O-1 visa at a consulate or is in the United States seeking to change or extend their O-1 status, their prospective employer or agent must file and obtain USCIS’s approval for the O petition. To do so, usually they must first obtain an advisory opinion from an appropriate consulting entity, such as a peer group, labor organization, or management organization. The advisory opinion is to state whether the foreign national qualifies as a person of extraordinary ability as provided above and whether there is objection to the person’s admission to the U.S.

If the foreign national is seeking an O-1B visa, the consultation must come from an appropriate labor union and a management organization with expertise in the beneficiary’s area of ability. However, if an expedited request is being made due to an exigency and there is not enough time for an issuance of advisory opinion, the petitioner may submit their application without the advisory opinion. Also, if an appropriate consulting agency does not exist as established by the petitioning employer, the advisory opinion requirement can be waived. Furthermore, if a consultation has already taken place within the prior two years with regards to a previous admission to render similar services (only for an O-1B in the arts), then the petition can be filed without the advisory opinion.

Apart from the advisory opinion and the O-1 petition itself, the petitioner must supply supporting documentation to establish that the foreign national qualifies as a person of extraordinary ability, and that they are going to be employed in activities using their extraordinary abilities. Proof of the prospective employment is typically done through an employment contract combined with a written discussion of the work to be performed.

The initial period of stay for O status is up to 3 years. An approved O petition will have a validity period commencing with the date of approval and ending with the date requested by the petitioner. This date is not to exceed the date which USCIS has determined to be necessary to complete the work-related event or activity the person is in the United States to do. Any requests for extensions of stay will be considered by USCIS and, once they have determined the time necessary to accomplish the initial event or activity, the O visa will be granted in increments of up to 1 year.

Do you intend to file an O-1 visa for yourself or an employee? Call us today before you start the process. We’ll determine the best strategy for your case and guide you through common issues that can lead to delays and denials.