O1 Visa

The O-1 Extraordinary Ability visa is a nonimmigrant visa category which allows foreign nationals who are exceptional or outstanding in their fields to come to the U.S. to work or perform in their field of extraordinary ability.

It is specifically designed for those with extraordinary ability in the arts, sciences, education, business, and athletics and those with a demonstrated record of extraordinary achievement in the motion picture or TV industries.

The O-1 category is split into 2 main categories:

• The O-1A category is for those who have extraordinary ability in science, business, education or athletics
• The O-1B category is for those who have extraordinary ability in the artis or a demonstrated record of extraordinary achievement in the motion picture or TV industries

The evidence requirements for the O-1 are significantly more extensive than many other work visa categories and are distinct for the O-1A and O-1B as well.

In terms of the O-1 visa, the definition of extraordinary ability depends on which category of O-1 you qualify for:

• O-1A- Extraordinary ability means you ha sustained national or international acclaim and you are one of a small percentage of people who have risen to the top of your field.
• O-1B Artists- Extraordinary ability means you have sustained national or international acclaim and have achieved “distinction” in the field of the arts.
• O-1B Motion Pictures/Television- Extraordinary ability means you have a record of extraordinary achievement in the motion picture or TV industry, evidenced by a degree of skill and recognition significantly above what is ordinarily encountered. This person will be outstanding, leading or notable in their field.

Each of the different O-1 categories have different evidentiary requirements.

1. Live and Work in the U.S.: The O-1 is a great option for foreign nationals looking to advance their careers in the U.S.
2. Keep your family together: O-1 holders can bring their spouse and children under 21 to stay with them in the U.S. in O-3 status. O-3 holders can attend school, through university, in the U.S. without restriction.
3. Dual Intent and Green Card: The O-1 is a dual-intent visa category. This means that the O-1 category allows foreign nationals to live and work in the U.S. while actively pursuing options for permanent residency for themselves and their families.
4. Portability and Flexibility: An O-1 holder is free to change jobs as long as the new employer files an O-1 petition on the employee’s behalf.
5. The Petitioner does not have to be an “employer”: Unlike other work visa categories, the O-1 Petitioner can be filed by an agent or talent manager. This is especially beneficial for artists and athletes who are not engaged in “regular” employment.
6. Multiple employers: O-1 holders can work for more than one employer through a Concurrent O-1 or through an agent.
7. Indefinite extensions– There are no limits to how long someone can have O-1 status. O-1 status can be indefinitely extended.

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The limitations of the O-1 include:

1. 1 Year Extension of Status: Although an initial O-1 has a 3-year maximum duration, extensions of status can only be issued in 1 year increments. Applicants who wish to gain the full 3 years of O-1 status must file the petition as a “new” petition through consular processing.
2. Spouse Work Authorization: O-3 spouses cannot work in the U.S.
3. High Documentary Threshold: The evidentiary requirement for the O-1 is expectedly high as the category requires proving you are “extraordinary”.

O-1 status can be granted for up to 3 years but can be restricted to the period time necessary to complete an event or activity.

For example, an artist coming to the U.S. must be able to present an itinerary showing the list of events (with dates and other information) that the artist will be participating in or presenting. USCIS will limit the O-1 validity to the dates provided in the itinerary.

On the other hand, a scientist, professor or other professional who has been offered full-time employment and/or other forms of “regular” employment may request up to 3 years of stay.

Yes, you may apply for O-1 visa extension of stay. Extensions are limited to one-year increments as long as you continue in the same or similar position or activity for which you were originally granted O-1 status with the same petitioner.

If you change employers or file for “new” employment, you may be able to extend your status for 3 years.

Yes, you may engage in study while on O status as long as it is incidental to your O-1 activities.

No, there are no travel restrictions on an O-1 visa. You may travel outside the U.S. and reenter as many times during the validity period of the O-1 petition as long as you have a valid O-1 visa. If you are Canadian, you may travel outside and reenter the U.S. as long as you have a valid O-1 approval notice.

An individual may not apply for O-1 visa for themselves. The O-1 work visa requires a sponsoring U.S. employer or agent, called a “Petitioner”, to file the Form I-129 petition with U.S. Citizenship & Immigration Services on behalf of the potential applicant, called a “Beneficiary”.

If the Beneficiary is outside the U.S. when the O-1 petition is approved, they can apply for the O-1 visa at a U.S. Consulate and can then enter to the U.S to begin working in O-1 status.

If the Beneficiary is in the U.S. already in valid nonimmigrant status, their status may automatically change to O-1 and then can begin employment.

The petitioner must file the Form I-129, Petition for Nonimmigrant Worker: The Form I-129 must be submitted to USCIS with the required filing fee and supporting documentation. The Form I-129 can be mailed to the appropriate USCIS Lockbox.

Yes, The O-1 petition can be filed under “Premium Processing.” Premium Processing is an optional service provided by USCIS where an additional fee is paid to expedite the processing of certain USCIS petitions, including the Form I-129 for O-1 petitions. This service guarantees that USCIS will provide a response (Approval, Request for Evidence or Notice of Intent to deny) within 15 business days.

Employers may request Premium Processing by filing a completed Form I-907, Request for Premium Processing Service along with the Form I-129 or it can be submitted after the Form I-129 is filed.

Petitions for O-1 foreign nationals must be accompanied by:

1. Documentary Evidence showing you are “extraordinary” based on your specific classification (O-1A or O-1B- see below)
2. Copies of any written contracts between the employer(s)/agent and yourself. If there is no written contract, a summary of the terms of the oral agreement under which you will be employed
3. Explanation of the nature of the events or activities, the beginning and ending dates for the events or activities, and a copy of any itinerary for the events or activities
4. Written advisory opinion(s) from the appropriate consulting entity or entities

You must demonstrate sustained national or international acclaim by providing evidence of either:

1.Receipt of a major, internationally recognized award, such as the Nobel Prize, or

Note: If the above criteria do not readily apply to your occupation, the employer may submit comparable evidence in order to establish your eligibility.

You must demonstrate sustained national or international acclaim and that you have achieved “distinction” in the field of the arts by providing evidence of either:

1.Being nominated for, or have 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

Note: If the above criteria do not readily apply to your occupation, the employer may submit comparable evidence in order to establish your eligibility.

You must demonstrate a record of extraordinary achievement in motion picture or television productions and show that you are coming to continue to work in such productions by providing evidence of either:

1.Being nominated for, or have 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

USCIS requires that petitioners submit a “consultation” with all O-1 petitions.

For O-1A and O-1B/Arts petitions, the consultation is in the form of an “advisory opinion from a U.S. ‘peer group’” in the area of field of the beneficiary’s extraordinary ability. This could also be a labor organization. An advisory opinion can only be issued if the peer group has reviewed the petition materials. An advisory opinion can give a favorable recommendation, a “no objection”, or unfavorable recommendation. USCIS is not required to adhere to unfavorable recommendations.

If there is no appropriate peer group, the petitioner can provide an advisory opinion from an expert in the field.

For O-1B/Motion Picture & TV petitions, a petitioner must provide an advisory opinion from the union which represents the beneficiary’s occupational peers as well as a management organization in the area of extraordinary ability. The advisory opinions can give a favorable recommendation, a “no objection”, or unfavorable recommendation. USCIS is not required to adhere to unfavorable recommendations.

USCIS can waive the consultation requirement if the beneficiary is reapplying for the O-1 and the advisory opinion was issued within 2 years.

The following types of documents can be submitted in support an O petition. These are not exhaustive examples- it’s important to provide the evidence which shows you meet the evidentiary requirements.

1. Copies Publications, presentations, abstracts, invitations to conferences as well as citations of such publications
2. Media reports and publications about your work by others in your field
3. Requests for reprints of your publications
4. Evidence of awards or honors received
5. Evidence of membership in professional associations which require achievement
6. Documents substantiating participation, either individually or on a panel, as the judge of the work of others in the field
7. Critical reviews, advertisements, press releases, publications contracts, or endorsements;
8. Box office receipts or record, cassette, compact disk, or video sales
9. Recommendation letters from experts in your chosen field explaining your standing as an alien of extraordinary ability

Yes, those who were previously in J-1 status are still subject to the 2 year home residence requirement under Sec. 212(e) can obtain an O-1 visa to work in the U.S.

Those who were subject to 212(e) 2 year home residence requirement are restricted from changing status in the U.S. unless they can obtain a waiver of the requirement. They are also restricted from obtaining H-1B or L-1 status and lawful permanent residence (the green card).

Those who are still subject or have not received a waiver can obtain an O-1 visa from a consulate after the O-1 petition has been approved. Once the petition is approved you must apply for the O-1 visa outside the U.S. and can enter the U.S. immediately without receiving a waiver or completing the 2 year home residence requirement.

Yes, you may bring your dependents while you are on an O-1 vias. Your spouse and unmarried children under 21 years old are entitled to an O-3 and they can stay as long as you maintain valid O-1 status.

O-3 dependents can attend school (elementary school through university) but cannot work in the U.S.

The O-1 category applies to foreign nationals seeking a nonimmigrant status, while the EB-1(A) category is for foreign nationals seeking permanent immigrant status.

The requirements for O-1A and EB-1A are essentially the same. However, the EB-1 process does not require an employer or proof of employment.

For the O-1, as with other work visa categories, an actual employer can be the petitioner. In this scenario, the O-1 Petitioner and Beneficiary will have a traditional employer-employee relationship.

An agent, who represents the employer and the beneficiary or multiple employers, can act as petitioner for O-1 petitions. The use of an agent as petitioner is generally seen in cases where the beneficiary is working in an industry where individuals are self-employed or where they traditionally use agents for short-term engagements. The use of agents is most often seen for use by models, artists and those in the motion picture and TV industries.

Yes, you may change employers on O-1 visa, however, a new petition must be filed by the new employer.

If the employment is terminated, the employer is liable to pay reasonable cost of return transportation to your last place of residence prior to your entry into the U.S.