The O-1 Extraordinary Ability Visa:

An Overview

Introduction

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. The tough requirements needed to establish eligibility can often appear confusing. For the benefit of U.S. petitioners who would like to engage foreign nationals of extraordinary ability who would like to come temporarily to the U.S. to work in the U.S., here we present an overview of the O1 nonimmigrant visa classification.

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1. The O-1 Visa Classification: Requirements

In order to obtain the O-1 visa, a foreign national must satisfy the following key O-1 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.
  • The foreign national must be coming temporarily to the U.S. to continue work in the area of Extraordinary Ability or Extraordinary Achievement.

In the O-1 context, the definitions of Extraordinary Ability and Extraordinary Achievement are set out in the regulations and the evidence required to prove the standard vary significantly.


2. Extraordinary Ability In The Field Of Science, Education, Business, Or Athletics

It means a level of expertise indicating that the person is one of the small percentage who have risen to the very top of the field of endeavor.

In order to prove that the Beneficiary has Extraordinary Ability in 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 must be submitted, namely:

1.Evidence that demonstrates receipt of a major, internationally recognized award such as the Nobel Prize, OR

2.Evidence that demonstrates at least 3 of the following:

a.Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

b.Membership in associations in his or her field, which require outstanding achievements of their members;

c.Published material in professional or major trade publications or major media about the foreign national, relating to his or her work;

d.Participation as a judge of the work of others in his or her field of specialization or in an allied field;

e.Original scientific, scholarly, or business-related contributions of major significance in his or her field;

f.Authorship of scholarly articles in his or her field, in professional journals, or other major media;

g.Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation;

h.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.


3. Extraordinary Ability In The Field Of Arts

It 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.

In order to prove that the Beneficiary has Extraordinary Ability in the arts, documents demonstrating that the foreign national is recognized as being prominent in his or her field of endeavor must be submitted, namely:

1.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

2.Documents that demonstrate at least 3 of the following:

a.He or she has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation;

b.He or she has achieved national or international recognition for his or her achievements;

c.He or she has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation;

d.He or she has a record of major commercial or critically acclaimed successes;

e.He or she has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in his or her field;

f.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.


4. Extraordinary Achievement In The Motion Picture Or Television Industry

It 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.

In order to prove that the Beneficiary has Extraordinary Achievement, documents demonstrating that the foreign national is recognized as having a demonstrated record of extraordinary achievement must be submitted, namely:

1.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

2.Documents that demonstrate at least 3 of the following:

a.He or she has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation;

b.He or she has achieved national or international recognition for his or her achievements;

c.He or she has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation;

d.He or she has a record of major commercial or critically acclaimed successes;

e.He or she has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in his or her field;

f.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.


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5. 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.

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

  • 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.
  • Evidence of Extraordinary Ability in science, Education, Business, or Athletics, Extraordinary Ability in the Arts or Extraordinary Achievement in the Motion Pictures or Television Industry, as described above.

DID YOU KNOW
Foreign nationals seeking an O-1 visa classification shall not petition for himself or herself. 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.

6. The Consultation

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 is usually 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.

Those with Extraordinary achievement in the Motion Picture or Television Industry must submit Consultations from both the appropriate Labor Union and Management Organization.

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.


7. Admission Into The U.S. On An O-1 Visa

Once the O1 petition is approved by USCIS, the Alien of Extraordinary Ability may apply for the O-1 visa at an appropriate US Embassy or Consulate.

If the foreign national is already in the U.S. in valid nonimmigrant status (other than Visa Waiver), the O-1 visa may not be required if the petition is filed with a “change of status” request.

The O-1 visa holder can be admitted for a period of up to 3 years or for the time needed to complete the event(s), competition(s), and/or performances(s).


8. 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.


9. After Admission Into The U.S.

Change In Terms & 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 may 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.

Termination Of Services

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


Conclusion

Scientists, Businesspersons, Educators, Artists, Athletes and those employed in the Motion Picture and Television industry have a limited range of US visa options to choose from. The key is to choose the best option that matches the foreign national’s abilities and purpose of the trip.

While the O-1 visa classification offers qualified foreign nationals various advantages and benefits, it is not suitable to all foreign nationals, but only to those of Extraordinary Ability or Extraordinary Achievement in select fields. Further, the e 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.

If you have any questions regarding the US O-1 visa, or any other type of work visa Schedule A Consultation With Immigration Lawyer Today >>. Our experienced attorneys will be happy to assist you.


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