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O-1: INDIVIDUALS OF EXTRAORDINARY ABILITY OR ACHIEVEMENT

Overview

The O-1 is a nonimmigrant employment-based visa classification set aside for individuals with extraordinary ability in the sciences, arts, education, business or athletics athletics or in the television and motion picture industry who is coming to the U.S. to perform services relating to specific projects, events or activities requiring extraordinary ability.

The fundamental requirement for an O visa is to have reached the top of the profession or endeavor for which the alien seeks admittance into the Unites States. To qualify, an applicant must generally have extraordinary ability demonstrated by sustained national or international acclaim.

O-1 visas are based on a petition filed by a U.S. employer offering a specific job in the U.S. that requires a person of extraordinary ability. Membership in a group or team that has received recognition for extraordinary achievement is not sufficient; the beneficiary must qualify on the basis of individual merit. The petitioning employer must submit evidence that the prospective employee meets the established O-1 criteria, that the position offered requires an individual of extraordinary ability, and that the individual is coming to the United States to continue to work in the area of extraordinary ability.

O-1 nonimmigrant may only work for the sponsoring petitioner. If there are multiple, concurrent or successive employers, an O-1 visa petition must be filed by each employer. To change employers, the new employer must file and receive an O-1 visa petition approval and the individual must be in valid O-1 status in the U.S. The new O-1 visa petition must actually be approved before the individual can commence employment.

A person holding O-1 status can apply for adjustment to Permanent Resident status (Form I-485) and continue to use his or her O-1 status as the basis for work authorization. However, an adjustment applicant who also holds O-1 status can no longer use the O-1 visa stamp to travel and must apply for and be granted an Advance Parole document as an adjustment applicant before he or she departs the U.S. Unlike adjustment applicants holding H or L status, one cannot travel on the I-485 receipt and O-1 visa.

The spouse and children (under 21) of the O-1 visa holder will be eligible for derivative visas to accompany the employee on the U.S. assignment in the O-3 classification. The O-3 classification does not allow for U.S. employment.

How is “extraordinary ability” defined?

In the sciences, education, business or athletics, “extraordinary ability” is defined as “sustained national or international acclaim”. An applicant must show a level of expertise indicating that he or she is “one of the small percentage who have risen to the very top of his or her field of endeavor”. Different standards apply for the television and motion picture industry and the arts.

How is “extraordinary ability” demonstrated?

To prove “extraordinary ability” in the sciences, education, business or athletics, one must either have received a major internationally recognized award such as the Nobel Prize or at least three of the following:

• Nationally or internationally recognized prizes or awards for excellence
• Membership in associations that require outstanding achievements of members
• Published material in professional publications or major media about the applicant relating to his/her work
• Participation on a panel, or individually, as a judge of the work of others
• Original scientific, scholarly or business contributions of major significance
• Authorship of scholarly articles in professional journals or other major media
• Employment in a critical or essential capacity for organizations with distinguished reputations
• Commanding a high salary or other remuneration for services
• Other comparable evidence can be provided if the above standards do not apply

In addition, strong support letters from other authorities in the field are required, as well as an “advisory opinion” consultation with an appropriate peer group or labor organization regarding the proposed work.

How is “extraordinary ability” demonstrated in the Arts?

In the arts, extraordinary ability means “distinction”, “a high level of achievement in the field of arts as evidenced by a degree of skill and recognition substantially above that ordinarily encountered”.

This category requires only that the artist is “prominent in his/her field of endeavor.” Petitioners must show that the O-1 beneficiary artist meets the standard of distinction either by showing that the beneficiary has been nominated for or ahs received a significant national or international award or prize, such as: an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award or that the beneficiary meets three of the following:

• Has performed/will perform services as a lead/starring participant in productions/events with distinguished reputations;
• Has received critical recognition in newspapers or trade journals;
• Has performed as a lead for an organization that has a distinguished reputation;
• Has a record of major commercial or critically acclaimed success;
• Has achieved significant recognition from organizations, critics, government agencies, recognized experts;
• Has commanded or will command a high salary/other remuneration in relation to others in the field.

How is “extraordinary ability” demonstrated in the Motion Picture or TV Industry?

In the motion picture or TV industry, extraordinary achievement is defined as “a very high level of accomplishment in the motion picture or TV industry evidenced by a degree of skill and recognition substantially encountered” the person must be outstanding or notable.”

• Permissible O-1/O-2 Petitioners Include Only U.S. Employers and Agents.
• O-1 Foreign Nationals CANNOT Petition On Their Own Behalf.
• An O Visa “Event” Includes A Wide Array of Activities:  These activities include, BUT ARE NOT LIMITED TO:
  • Scientific Projects;
  • Conferences;
  • Conventions;
  • Lecture Series;
  • Tours;
  • Exhibits;
  • Business Projects;
  • Academic Years or Engagement;

A group of related activities can also be considered an event and can include a foreign national’s entire contract. Please contact us to determine if you or your client(s)’s activities might qualify as an “event” for O visa purposes.

Duration of Stay

The initial period of validity for O-1 status is three years. Extensions may be obtained for additional one year periods, to continue or complete the same event of activity for which the O-1 was granted. USCIS regulations do not provide for a maximum limit on O-1 status, but, because it is a nonimmigrant status, a long-term O-1 visa holder may eventually experience difficulty returning to the U.S. in O-1 status as it may appear that he or she no longer has the required nonimmigrant intent.

In the case of former J-1 visa holders who are subject to a home country requirement and who are present in the U.S., a change of status cannot be filed, and, upon approval of the petition, the applicant must travel to a U.S. consulate to obtain an O-1 visa stamp before being able to work for the employer in O-1 status. If the individual is outside the U.S. or is not otherwise eligible for a change of status in the U.S., then the petition can be filed with a request for Consular notification and if/when it is approved, the individual must apply for the actual visa (unless visa exempt) at a U.S. Consulate prior to applying for admission as an O-1 nonimmigrant.

Why Apply for the O1 Visa

O-1 classification is an option for highly qualified aliens who either are not eligible for other nonimmigrant visas, e.g. H, L, or J, or who wish to avoid those visa classifications. The following are some reasons why the O-1 visa may be appropriate in some situations:

• No LCA is required. Therefore, an Employer can bypass the Department of Labor and its prevailing wage and notice requirements.
• There is no limit to the number of O visa petitions that can be issued by USCIS, therefore there is no annual “cap” on these visas.
• The O-1 is not subject to a maximum period of validity, such as the H-1B six-year limit or the L-1 five-seven year limit.
• If an individual is in J-1 classification or previously held J-1 classification and is subject to the two-year foreign residency requirement and that requirement has not been waived, this individual is ineligible for H-1B and L-1 visa/classifications, as well as Permanent Residency, but may obtain an O-1 visa/status.

Our professionals are well experienced in preparing O visa applications of behalf of highly talented and acclaimed foreign nationals seeking to offer their talents and skills for employment in the U.S. These individuals include:

• Research scientists holding J1 status in the US
• F1 students whose OPT are expiring but no H1B visa numbers are available
• B1 visa holders who come to the US to attend international conferences
• Artists who wish to held artist exhibitions in the US
• Violists who are invited to participate in musical performances