O-1 Visas - Persons with Extraordinary Ability or Achievemen

O-1 Visas - Persons with Extraordinary Ability or Achievements

The O-1 nonimmigrant visa permits temporary employment of individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics, or who have a demonstrated record of extraordinary achievement in the motion picture or television industry and have been recognized nationally or internationally for those achievements.

The O visa classification is divided as follows:

• O-1A: individuals with extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion picture or television industry);
• O-1B: individuals with extraordinary ability in the arts, or extraordinary achievement(s) in the motion picture or television industry;
• O-2: individuals who will accompany an O-1 artist or athlete to assist in a specific event or performance. For an O-1A, the O-2’s assistance must be an “integral part” of the O-1A’s activity. For an O-1B, the O-2’s assistance must be “essential” to the completion of the O-1B’s production. The O-2 worker has critical skills and experience with the O-1 that cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O-1;
• O-3: individuals who are the spouse or children of O-1’s and O-2’s.

Eligibility Criteria

To qualify for an O-1 visa, the beneficiary must demonstrate “extraordinary ability in the sciences, arts, education, business, or athletics” by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability.

• Extraordinary ability in the fields of science, education, business or athletics means a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor.
• Extraordinary ability in the arts is demonstrated by showing “distinction,” which is a high level of achievement in the arts evidenced by a degree of skill and recognition substantially above what is ordinarily encountered, to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.
• To qualify for an O-1 visa in the motion picture or television industry, the beneficiary must demonstrate extraordinary achievement evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable or leading in the motion picture and/or television field.

The O-1 Application Process

Preparation of an O-1 petition should be started as soon as practical, but the actual petition cannot be filed with USCIS more than one year before the actual need for the alien's services. To avoid delays, the Form I-129 should be filed at least 45 days before the date of employment.

O-1A Petitions

An O-1A petition should include the following documentary evidence:

• A written advisory opinion from a peer group (including labor organizations) or a person designated by the group with expertise in the O-1 beneficiary’s area of ability;
• A copy of any written contract between the O-1 beneficiary and the petitioner or a summary of the terms of the oral agreement under which he/she will be employed;
• An 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;
• Evidence that the O-1 beneficiary has received a major, internationally-recognized award, such as a Nobel Prize, or evidence of at least (3) three of the following: Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor; Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized international experts; Published material in professional or major trade publications, newspapers or other major media about the O-1 beneficiary and his/her work in the field for which classification is sought; Original scientific, scholarly, or business-related contributions of major significance in the field; Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought; A high salary or other remuneration for services as evidenced by contracts or other reliable evidence; Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which O-1 classification is sought; Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.

If the above standards do not readily apply to the O-1A beneficiary’s occupation, he/she will need to submit comparable evidence in order to establish eligibility.

O-1B Petitions

An O-1B petition should include the following documentary evidence:

• A written advisory opinion, describing the extraordinary ability as follows: If the petition is based on extraordinary ability in the arts, the consultation must be from a peer group (including labor organizations) in the O-1 beneficiary’s field of endeavor; or a person or persons designated by the group with expertise in the same area of ability; If the petition is based on extraordinary achievements in the motion picture or television industry, separate consultations are required from a labor organization and a management organization with expertise in the field of endeavor;
• A copy of any written contract between the O-1 beneficiary and the petitioner or a summary of the terms of the oral agreement under which he/she will be employed;
• Evidence that the O-1 beneficiary has received, or been nominated for, significant national or international awards or prizes in the particular field, such as an Academy Award, Emmy, Grammy or Director's Guild Award, or evidence of at least (3) three of the following: Performed or will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements; Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the O-1 beneficiary in major newspapers, trade journals, magazines, or other publications; A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers or other publications; Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the O-1 beneficiary is engaged, with the testimonials clearly indicating the author's authority, expertise and knowledge of the alien's achievements; A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence.

If the above standards do not readily apply to the O-1B beneficiary’s occupation in the arts, he/she may submit comparable evidence in order to establish eligibility (this does not apply to the motion picture or television industry).

The O-2 Application Process

An O-2 alien must be petitioned for in conjunction with the services of the O-1 alien, and the petitioner must submit the petition with a written advisory consultation discussing the following criteria:

• If the O-2 petition is for support of an individual with extraordinary ability in athletics or the arts, the consultation must be from the appropriate labor organization; or
• If the O-2 petition is for support of an individual with extraordinary achievement in motion pictures or television, the consultation must come from an appropriate labor organization and a management organization with expertise in a the skill area involved.
• Evidence of the current essentiality, critical skills, and experience of the O-2 alien with the O-1 alien, and that the alien has substantial experience utilizing the critical skills and essential support services for the O-1. In the case of a specific motion picture or television production, the evidence shall establish that significant production has taken place outside the U.S. and will take place inside the U.S. and that the continuing participation of the alien is essential to the successful completion of the production.

Once the visa petition is approved, the petitioner can apply for an O visa at a U.S. embassy or consulate.

Period of Stay/Extension of Stay

An O nonimmigrant can be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. He/she may only engage in employment during the validity period of the petition. The O-1 or O-2 petition can be approved for an initial period of up to three years, and extensions can be sought for any additional time needed to accomplish the event or activity, in one year increments.

Family Members of O-1 and O-2 Visa Holders

Any accompanying or following to join spouse and children under the age of 21 may be eligible to apply for an O-3 nonimmigrant visa, subject to the same period of admission and limitations as the O-1 nonimmigrant. Dependents in O-3 status may not work in the United States under this classification, but they may engage in full or part time study.

Changing Employers

An O-1 nonimmigrant can change employers, but the new employer must file its own O-1 or other petition to support the change of employer. The O-1 employee cannot begin work for the new employer until the petition has been approved by USCIS. Note: There are special rule for professional athletes. When a professional athlete with O-1 nonimmigrant status is 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 petition. The simple act of filing the new petition within this 30-day period extends the employment authorization at least until the petition is adjudicated. If the new employer does not file a new petition within 30 days of the trade, the athlete loses his or her employment authorization. The athlete also loses his or her employment authorization if the new O-1 petition is denied.

Return Transportation

If an O nonimmigrant beneficiary’s employment is terminated for reasons other than voluntary resignation, the employer must pay for the reasonable cost of the O beneficiary’s return transportation to his/her last place of residence before entering into the United States.

For more information on the O-1 classification, or to engage Goel & Anderson’s services, please contact us to schedule an in-person or telephonic consultation.