O-1 Visa

O-1 Status is a non-immigrant status category for aliens of extraordinary ability in the sciences, arts (including the television and motion picture industry), education, business or athletics. This is an employment related status that allows qualified aliens to live and work in the United States. O-1 petitions may only be filed by a U.S. employer or a U.S. agent on behalf of the beneficiary. The O-1 visa is a dual intent visa, meaning that the beneficiary may simultaneously seek permanent resident status while in the U.S. on O-1 without worrying about preconceived intent issues.

There are several different types of visas in the O category:

O-1A- Individuals with an extraordinary ability in the sciences, education, business, or

O-1B- Individuals with an extraordinary ability in the arts or the extraordinary achievement in the motion picture or television industry

O-2- Individuals who will accompany an O-1 individual to assist in a specific event or performance

O-3- Individuals who are the spouse or children of O-1s and O-2s

The initial period of stay for O status is up to 3 years. An approved O petition will have a validity period commencing with the date of approval and ending with the date requested by the employer. This date is not to exceed the date U.S.C.I.S. has determined necessary to complete the work-related event or activity that the alien is engaged in while in the U.S. Any requests for extensions of stay, submitted to U.S.C.I.S., are considered in increments of up to 1 year.

Who can apply for a O-1 Visa?

O status can be sought by an employer in the U.S. for an alien of extraordinary ability. The Code of Federal Regulations defines a qualifying event as “an activity such as, but not limited to, a scientific project, conference, convention, lecture, series, tour, exhibit, business project, academic year, or engagement.”

In addition, a job which may not have a specific engagement or project that exactly fits the above definition may also count, if the job is the “activity” within the alien’s area of extraordinary ability. Activities such as these may include short vacations, promotional appearances, and stop-overs, which are incidental and/or related to the event.

Benefits of an O Visa

O-1 status is distinguished from other employment visas since it applies to diverse work categories. For example, H-1B status is limited to professionals and cannot apply to athletes or entertainers.  Sometimes the O visa is sought by non-immigrant workers, with extraordinary ability, who failed to be counted in the annual H-1B quota. This is because the O visa is not restricted numerically by an annual quota.

An O-1 Visa Applicant has the benefit of being able to work despite the J-1 Visa two-year foreign residency requirement. While many individuals who hold or have held J-1 or J-2 status are not permitted to obtain an H or L visa status (until they: satisfy the two-year foreign residence requirement or obtain a waiver) they may obtain O status. In such cases however, the alien may not change status to O-1 in the U.S., but must obtain an O-1 visa at a U.S. Embassy/Consulate after their O-1 application is approved by the U.S.C.I.S.

Process for Obtaining a O Visa

A prospective employer must file a O visa application and obtain an approval by U.S.C.I.S. The burden of proof rests on the following criterias:

  1. The prospective employer needs to make an offer of employment to an individual of extraordinary ability;
  2. The individual will need to demonstrate he/she has extraordinary ability;
  3. The individual will need to demonstrate he/she is coming temporarily to the U.S. to work in an area that requires an employee with extraordinary 

Advisory Opinion

The first step for an O visa petition is to obtain an advisory opinion from an appropriate consulting entity, such as a peer group, labor organization, or management organization. The advisory opinion must indicate whether the individual qualifies as an alien of extraordinary ability and whether such extraordinary abilities are required for the activities to be undertaken by the alien. If the alien is seeking an O-1B visa (for an individual with extraordinary achievement in motion pictures or television), the advisory opinion must come from an appropriate labor union and a management organization with expertise in the individual’s area of ability.

An advisory letter is not required under the following circumstances:

  1. An expeditious handling of the petition is requested (this can only be done in the event of an exigency such as an event that the proposed O-1 alien needs to attend, before an advisory opinion can be obtained);
  2. An appropriate consulting entity does not exist as established by the petitioner; or
  3. ONLY for aliens of extraordinary ability in the arts, a waiver of the advisory opinion may be made because a consultation has taken place within the prior two years with regard to a previous admission to render similar services.

Required Qualifications

Qualifications for O-1 status vary depending on the area of work, i.e. arts, sciences, 

  1. For Aliens in the sciences, education, business, and athletics. For these fields, the alien must show that he/she is in the top of his respective field. This can be established through evidence of receipt of a major, internationally recognized award such as a Nobel Prize. In absence of such an award one can establish himself as a qualifying alien through at least three of the following types of evidence:
    • Documentation of receipt of lesser nationally (not necessarily U.S.) or internationally recognized prizes or awards for excellence in the field of endeavor;
    • Documentation of membership in associations in the field of endeavor which require outstanding achievements of their members, as judged by recognized national or international experts in their fields;
    • Published material in professional or major trade publication or in the major media about the alien and relating to the alien's work in the field of endeavor;
    • Evidence of participation as a judge (individually or as a part of a panel) of the work of others in the alien's field;
    • Evidence of scientific, scholarly, or business related contributions of major significance in the field of endeavor;
    • Evidence of authorship of scholarly articles in the field, in professional journals or other major media;
    • Evidence of performance in a critical or essential capacity for organizations or establishments with distinguished reputations;
    • Evidence of having commanded a high salary or other significantly high remuneration for services in relation to others; and
    • Other comparable evidence
  2. For Aliens in the arts, motion pictures, or television.

 For the arts, the alien must show that he has acquired "distinction" in his artistic field. 
"Distinction" means a high level of achievement as evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that the person is described as prominent, leading, or well-known in the field of arts:Persons in the motion picture or television industry must show a very high level of accomplishment evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent that the person is recognized as outstanding, notable, or leading in the industry.  Under these standards the requirements under the motion picture or television industry are somewhat higher than those for the arts. In either case, the forms of evidence to be used to establish the qualification is the same. The alien may establish qualification through evidence of nomination or receipt of a major, national or international recognized award such as an Academy Award, an Emmy, a Grammy, or a Director's Guild Award. In absence of such an award one can establish himself as a qualifying alien through at least three of the following types of evidence:
    • Having been or will be performing a lead or starring role in productions or events which have a distinguished reputation (as evidenced by critical reviews, advertisements, press releases, publications contracts, or endorsements;
    • Critical reviews or other published material in professional or major trade publication or in the major media by or about the alien which show that the alien has achieved national or international recognition or achievements;
    • Evidence of performance in a lead, starring or critical role for organizations or establishments with distinguished reputations;
    • Evidence of a record of major commercial or critically acclaimed successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.
    • Evidence of significant recognition for achievements form organizations, government agencies, or other recognized experts in the field;
    • Evidence of having commanded a high salary or other significantly high remuneration for services in relation to others; and
    • Other comparable evidence.

Supporting Documentation

The supporting documentation is to establish that the alien qualifies as an alien of extraordinary ability, and that the alien is going to be employed in activities using his/her extraordinary abilities. For information on the qualifications for the different O-1 visas, please see below. Proof of the prospective employment is typically established through an employment contract combined with a written discussion of the work to be performed. For proof that the alien is an alien of extraordinary ability, the following types of documents can be submitted in support of an O Petition:

  • Degree certificates and evaluation reports of the alien;
  • Publications, presentations, abstracts, invitations to conferences for the alien as well as citations of such publications;
  • Comments on the alien's work by others in the alien's field;
  • Requests for reprints of alien's publications;
  • Evidence of awards or honors received;
  • Evidence of membership in professional associations;
  • Documents of alien's participation, either individually or on a panel, as the judge of the work of others in the field;
  • Critical reviews, advertisements, press releases, publications contracts, or endorsements;
  • Box office receipts or record, cassette, compact disk, or video sales;
  • Alien's Curriculum Vitae; and
  • Recommendation letters from experts in the alien's field explaining his standing as an "alien of extraordinary ability"

The listing above is not exclusive and other forms of evidence may be used.

Assistants and Dependents of O Visa

Certain dependents of O-1 status holders may travel to the U.S. with them on an O-3 visa. These nonimmigrants have the same duration of stay as the primary O-1 status holder. Moreover, O-1 holders may bring an assistant or assistants, under O-2 status, to support his/her work

O-3 Status

Any spouse or children under the age of 21 who wish to accompany an O-1 or O-2 status holder to the U.S. may be eligible to apply for an O-3 nonimmigrant visa. They are subject to the same period and limitations as the primary O-1 or O-2 alien. These nonimmigrants are not allowed to accept employment unless they apply and have been granted an Employment Authorization Document.

If the spouse or child is already in the United States on another nonimmigrant classification, they may file a separate change of status application in order to accompany their O-1 or O-2 alien.

O-2 Status

This non-immigrant status is available to those who will accompany and assist in the artistic or athletic performance of an O-1 alien. To qualify for O-2 status, the alien must be an "integral part" of the actual performance and have "critical skills and experience" with the O-1 alien which are not of a general nature and which cannot be performed by U.S. workers.

In order to qualify for O-2 status, the petitioner must be able to establish that the beneficiary has met the standards necessary to claim their O-2 visa:

  • To accompany an O-1 artist or athlete of extraordinary ability, the alien must provide evidence of current essentiality, skills and experience of the O-1 beneficiary and evidence of prior experience working with the principal O-1 alien.
  • To accompany an O-1 alien of extraordinary ability in the sciences, education, business, etc., the alien must provide evidence that significant production work has taken place outside the U.S. and will continue in the U.S., and that the alien’s continuing participation is critical to the success of the production.
  • Additionally, the O-2 beneficiary must maintain a foreign residence that he or she has no intention of abandoning.

Just as with an O-1 petition, consultation with an appropriate peer group that can attest to the O-2 alien’s qualifications and necessity is mandatory before the petition can be approved by the U.S.C.I.S. The only exception to the consultation requirement would be if the petitioner can demonstrate that an appropriate peer group does not exist. In this situation the petition decision will be based on the evidence on record.

The petitioning employer must file a petition (Form I-129, Petition for Nonimmigrant Worker) with U.S.C.I.S. for the O-2 visa in conjunction with the O-1 alien at least 45 days before the start date of employment. Please note that the petitioner may not file the Form I-129 more than one year before the O-1 nonimmigrant will begin employment.

O Visa versus H1-B Visa

Oftentimes a professional coming to the United States may technically qualify for several different working non-immigrant visas due to their academic, professional, or award-winning qualifications. Applying for the correct visa can greatly increase the chances of obtaining an approval. Variables such as yearly quotas, visa time limits, and residency requirements may lead to a specific work visa. Depending on the situation, an alien may find it more beneficial to apply for an H-1B instead of an O-1, or viceversa.

The O-1 and H-1B visas can often have common eligibility characteristics. The H-1B visa allows foreign professionals in specialty occupations to come to the United States temporarily to work for a U.S. employer. H-1B workers often work in fields including engineering, mathematics, science, biotechnology, businesses, etc. The O-1 visa is for aliens of extraordinary ability in the sciences, arts (including television and motion pictures), business or athletics. Extraordinary ability means that they have shown, through evidence such as scholarly publications or proof of high salary that they are at the top of their respective field. An alien seeking an H-1B visa in the science field may also be able to qualify for an O-1 visa, if they can provide the necessary documentation of their extraordinary ability.

Other similarities between the two visas that might make them both attractive options include that they are both dual intent, employer-sponsored, and allow for spouses and children to accompany the primary visa holder.

Below we have outlined some common reasons why an alien seeking to come to the United States on an employment-based visa may find it more beneficial to apply for O-1 over H-1B.

O Visa

H1-B Visa

No annual quota. For this reason, an alien may choose to apply for an O-1 visa if the H-1B quota for the year has already been filled Annual quota of 65,000. Only a few thousand applicants may qualify for additional H-1B visas that are not included in that quota, if they meet the criteria for cap-exempt H-1B workers. Therefore, H-1B visas often run out before the end of the fiscal year and it may not be possible to obtain one in all cases.
It is granted for an initial period of up to three years with options to extend status in increments of one year. The U.S.C.I.S. grants O-1 visas for time periods determined by the nature of the alien’s work in the U.S.. Theoretically, an alien’s O-1 status could be extended indefinitely, as long as the U.S.C.I.S. finds that it is necessary for them to continue to do the specific activity required by their employer. It is initially available for a period of three years, with options to extend it for two years and occasionally another year beyond that, for a total possible period of six years. Beyond those six years the H-1B worker will no longer be in legal status and there are very few instances where an H-1B can be extended beyond 6 years.
J-1 Exchange Visitor Visa holders, who are subject to a two years foreign residency requirement, may return to the U.S. on another type of visa such as O-1 without having fulfilled their foreign residency requirement. However, it is important to note that although the alien may be able to work temporarily in the U.S. on an O-1 he/she will still be unable to adjust to Legal Permanent Resident Status (LPR) without completing the foreign residency requirement or obtaining a waiver.    

 

J-1 Exchange Visitor Visa holders, who are subject to a two years foreign residency requirement, must return to their home country for two years upon completion of their J-1 status before they are eligible to apply for H or L status or adjust to Legal Permanent Resident Status (LPR).

 

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