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The O-1 Extraordinary Ability Visa: An Overview
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Adam is a British National who is an award-winning wildlife television program producer. His productions have won multiple awards from the British Academy of Film and Television Arts or BAFTA’s (the equivalent of the Emmy Awards and Oscar Awards in the U.S.) When a Canadian Studio engaged Adam to do a series on wildlife in Alaska, they told him that they would be applying for an O-1 visa for him. So, he decided to check out what an O-1 visa was all about. However, when he started reading about the O-1 visa, he found the requirements to be complex and many terms confusing. Extraordinary Ability, Extraordinary Achievement, Consultations - the more he read, the more confusing it appeared to him, making him anxious and apprehensive. He wished to have a clear understanding of the O-1 visa and sought the advice of immigration experts. So, what is an O-1 visa? What are the O-1 visa requirements? How does one apply for an O-1 visa? Will Adam qualify for an O-1 visa?

The O-1 visa, commonly known as the Extraordinary Ability visa, is available to foreign nationals who are coming to the U.S. temporarily to continue to work in their field of endeavor and have:

  • Extraordinary Ability in the arts, sciences, education, business, or athletics; OR,
  • Extraordinary Achievement in the motion picture or television industry.

 
The O-1 visa classification is one of the most complex among all U.S. nonimmigrant work visa classifications, prescribing a relatively high standard of eligibility for qualification. The tough eligibility requirements needed to establish eligibility often appear confusing to both U.S. petitioners and foreign national beneficiaries alike. For the benefit of U.S. petitioners who would like to engage foreign nationals of extraordinary ability for work in the U.S. as well as aliens of extraordinary ability who would like to come temporarily to the U.S. to work in the U.S., we present in this article an introduction to the O1 visa, an overview of the key O-1 visa requirements and process, along with a few important features of the U.S. O-1 Extraordinary Ability visa.

 

The O-1 Visa Requirements

In order to obtain the O-1 visa, a foreign national must satisfy the following key O-1 visa requirements:

  • The foreign national must have Extraordinary Ability in the sciences, arts, education, business, or athletics, or must have a demonstrated record of Extraordinary Achievement in the motion picture or television industry.

Note 1: ‘Extraordinary Ability’ in the field of science, education, business, or athletics means a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor.

Note 2: ‘Extraordinary Ability’ in the field of arts means distinction - a high level of achievement evidenced by a degree of skill and recognition that is substantially above those ordinarily encountered. The foreign national must be renowned, leading, or well-known in the field of arts.

Note 3: ‘Extraordinary Achievement’ means a very high level of accomplishment, evidenced by a degree of skill and recognition that is significantly above those ordinarily encountered. The foreign national must be recognized as outstanding, notable, or leading.

  • The foreign national must be coming temporarily to the U.S. to continue work in the area of Extraordinary Ability or Extraordinary Achievement.

 

The O-1 Visa Process

To begin the O-1 process, a U.S. petitioning entity that intends to sponsor a foreign national of extraordinary ability, must first submit Form I-129, Petition for a Nonimmigrant Worker to USCIS with the required supporting evidence. The O-1 petition may not be filed more than one year before the actual need for the foreign national’s services in the U.S.

Note 1: Foreign nationals seeking an O-1 visa classification shall not petition for himself or herself. Further, an O-1 petition can only be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent.

Note 2: Only one beneficiary may be included on each O-1 petition.

An O-1 petition for a foreign national of extraordinary ability submitted to USCIS must be accompanied by the following evidence, among others:

A. For foreign nationals of Extraordinary Ability in the fields of science, education, business, or athletics:

Evidence demonstrating sustained national or international acclaim and recognition for achievements of the foreign national in the field of expertise, namely:

    • Evidence that demonstrates receipt of a major, internationally recognized award such as the Nobel Prize,  OR
    • Evidence that demonstrates at least 3 of the following:
      • Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
      • Membership in associations in his or her field, which require outstanding achievements of their members;
      • Published material in professional or major trade publications or major media about the foreign national, relating to his or her work;
      • Participation as a judge of the work of others in his or her field of specialization or in an allied field;
      • Original scientific, scholarly, or business-related contributions of major significance in his or her field;
      • Authorship of scholarly articles in his or her field, in professional journals, or other major media;
      • Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation;
      • The foreign national has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.

Note: If the criteria above do not readily apply to a foreign national’s occupation, comparable evidence may be submitted to establish his or her eligibility.

B. For foreign nationals of Extraordinary Ability in the fields of arts:

Documents demonstrating that the foreign national is recognized as being prominent in his or her field of endeavor, namely:

    • Documents that demonstrate that the foreign national has been nominated for, or has been the recipient of, significant national or international awards or prizes in the particular field such as an Academy Award, an Emmy, a Grammy, a Tony or a Director's Guild Award; OR
    • Documents that demonstrate at least 3 of the following:
      • He or she has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation;
      • He or she has achieved national or international recognition for his or her achievements;
      • He or she has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation;
      • He or she has a record of major commercial or critically acclaimed successes;
      • He or she has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in his or her field;
      • He or she has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field;

Note: If the criteria above do not readily apply to a foreign national’s occupation, comparable evidence may be submitted to establish his or her eligibility.

C. For foreign nationals of Extraordinary Achievement in the motion picture or television industry:

Documents demonstrating that the foreign national is recognized as having a demonstrated record of extraordinary achievement, namely:

    • Documents that demonstrate that the foreign national has been nominated for, or has been the recipient of, significant national or international awards or prizes in the particular field such as an Academy Award, an Emmy, a Grammy, or a Director's Guild Award; or
    • Documents that demonstrate at least 3 of the following:
      • He or she has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation;
      • He or she has achieved national or international recognition for his or her achievements;
      • He or she has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation;
      • He or she has a record of major commercial or critically acclaimed successes;
      • He or she has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in his or her field;
      • He or she has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field.

In addition to the above, all O-1 petitions must also be accompanied by the following documents:

  • Copies of any written contracts or if there is no written contract, a summary of the terms of the oral agreement, between the petitioner and the foreign national;
  • An explanation of the nature of the events or activities, the beginning and ending dates for the events or activities, and, if applicable, a copy of any itinerary for the events or activities;
  • Written advisory opinion or Consultation from an appropriate consulting entity or entities or individual.

Note: Consultation with an appropriate U.S. peer group, labor and/or management organization regarding the nature of the work to be done and the foreign national’s qualifications is mandatory before an O1 petition can be approved. The consultation shall be in the form of a written advisory opinion from a peer group (which could include a person or persons with expertise in the field), labor and/or management organization with expertise in the specific field involved. Alternatively, a consulting organization may also submit a letter of no objection if it has no objection to the approval of the petition. In cases where the petitioner can establish that an appropriate peer group, including a labor organization, does not exist, USCIS may decide the application on the basis of the evidence on record.

 

Admission into the U.S. on an O-1 Visa

If the foreign national of extraordinary ability is in the U.S. in another visa status (B-2, for example), and the O1 visa petition is approved along with a change of status request, then he or she will be able to remain in the U.S. and commence working on the O-1 visa classification. If the foreign national is outside the U.S., he or she must apply for, and obtain an O-1 visa from a U.S. Embassy or Consulate before he or she can travel to the U.S. and seek admission under the O-1 visa classification.

Under the O1 visa classification, foreign nationals of extraordinary ability may be initially admitted in to the U.S. for a period of up to 3 years.

 

O-3 Visa for Family Members of O-1 Visa Holders

The spouse and unmarried children under the age of 21 of an O-1 foreign national are entitled to seek O-3 visa classification. If they are accompanying or following-to-join the O-1 foreign national in the U.S., they will be subject to the same period of admission and limitations as the O-1 foreign national. However, neither the spouse nor a child may accept employment while in the U.S. on an O3 visa, while they may attend school or college.

 

After Admission into the U.S.

Change in Terms and Conditions of Employment

If any material change occurs in the terms and conditions of an O-1 foreign national’s employment or eligibility, the petitioner must immediately notify USCIS of such changes. An amended petition should be filed when the petitioner continues to employ the O-1 foreign national. If the petitioner no longer employs the O-1 foreign national, the petitioner shall send a letter explaining the changes to the USCIS.

Note: There are special rules for athletes. When professional athletes with O-1 nonimmigrant status are traded from one team to another, employment authorization will continue with the new team for 30 days during which time the new employer must file a new Form I-129, in which case the employment authorization will be extended at least until the petition is adjudicated.  If the new employer does not file a new Form I-129 within 30 days of the trade, the athlete will lose his or her employment authorization.

Change of Employers

While in the U.S., foreign nationals of extraordinary ability on an O-1 visa classification are allowed to work only for the entity that sponsored the O-1 visa petition or through the agency that sponsored the O-1 visa petition. If, however, an O-1 visa holder in the U.S. wishes to change employers or agencies, then the new employer or agency must file a Form I-129 with the USCIS, with a request to change employers and extend the foreign national’s stay in the U.S. The O-1 foreign national cannot commence employment with the new employer until the petition and request for extension have been approved.

Extension of Stay

An extension of stay may be sought on behalf of foreign nationals of extraordinary ability in the U.S. on an O-1 visa classification to enable them to continue or complete the same event or activity for which they were admitted into the U.S. A petition for extension may be filed only if the validity of the original petition has not expired and the O-1 beneficiary must be physically present in the U.S. at the time of filing of the extension of stay. Extensions of stay may be authorized in increments of up to 1 year to enable O-1 foreign nationals to continue or complete the same event, activity or performance.  There is no limit as to the number of extensions that may be requested.

Dual Intent

The doctrine of “dual intent” appears to be recognized for foreign nationals in O-1 visa status. The approval of a permanent labor certification or the filing of an immigrant visa petition is generally not a basis for denying an O-1 petition, a request to extend such a petition, or the O-1 foreign national’s application for admission, change of status, or extension of stay. Regulations permit foreign nationals of extraordinary ability to legitimately come to the U.S. for a temporary period as an O-1 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.

Termination of Services

If the employment of a foreign national on O-1 visa classification is terminated for reasons other than voluntary resignation, then the employer and the U.S. Petitioner are liable to pay to such O-1 foreign national the reasonable cost of return transportation to his or her residence abroad. 

Conclusion

As seen above, the O-1 visa classification is available only to foreign nationals with Extraordinary Ability in the arts, sciences, education, business, or athletics, and, foreign nationals with Extraordinary Achievement in motion picture or television industry. Qualified foreign nationals may be admitted into the U.S. on an O-1 visa classification for a period of up to 3 years initially, and their stay may be extended in increments of up to one year, with no limit on the number of extensions. O-1 foreign nationals can engage in part-time study while in the U.S. The spouse and unmarried minor children can stay in the U.S. in O-3 status with the O-1 foreign national as long as he or she maintains his or her O-1 status. However, those on O-3 visa classification cannot engage in any employment. There are no travel restrictions for those on the O visa and O-1 foreign nationals and their families can freely travel in and out of the U.S. as long as their visa stamp and status are valid.

Additionally, in respect to an O-1 athlete, foreign nationals who will accompany the principal O-1 athlete to the U.S. to assist in a specific event or performance may be eligible for an O-2 visa, if such individual’s assistance forms an ‘integral part’ of the O-1 athlete’s activity. Similarly, in respect to an O-1 artist, foreign nationals who will accompany the principal O-1 artist to the U.S. to assist in a specific event or performance, may be eligible for an O-2 visa if such individual’s assistance is ‘essential’ to the completion of the O-1 artist’s production. In both cases, the O-2 worker must have and provide evidence of critical skills and experience with the O-1 artist or athlete, that cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O-1 artist or athlete.

While the O-1 visa classification offers qualified foreign nationals various advantages and benefits, it is not open to all foreign nationals but only to those of Extraordinary Ability or Extraordinary Achievement in select fields. Further, the O-1 Extraordinary Ability visa classification is one of the most complex among all U.S. nonimmigrant work visa classifications. The eligibility requirements prescribed for an O-1 visa lay down very high standards for qualification. Hence extensive preparation and documentation are absolutely necessary for successful filing of an O-1 petition.

After consulting with immigration experts, Adam realized that while, as a BAFTA-winning producer, he may have a fair chance of qualifying for the O-1 visa, he also needed to sufficiently document his achievements and credentials, and present them suitably along with the O-1 petition, for consideration by USCIS. Further, as he was being engaged by a foreign company – a Canadian Studio – his O-1 petition would have to be filed in the U.S. by an authorized U.S. agent. Becoming aware of the considerable task at hand, Adam wasted no time and started gathering all the necessary documentation that would ensure a successful O-1 filing.  

Contact VisaPro if you have any questions regarding the U.S. O-1 Extraordinary Ability visa, or any other type of work or family visa. Our experienced attorneys will be happy to assist you. 


The above article is brought to you by VisaPro. VisaPro’s U.S. Immigration Lawyer Services include O visas, P-3 visa, P-1 visa, H-1B visa, L-1 visa, Green Cards and over 100 Immigration Services.

The information in this article is not intended to be legal advice. If you have questions specific to your case, we suggest that you consult with the experienced immigration attorneys at consultattorney.visapro.com 

Visit VisaPro regularly for updates and the latest immigration news at http://www.visapro.com/ 


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