O-1A category applies to highly talented aliens who demonstrated an “extraordinary ability” in sciences, arts, education, business or athletics through “sustained national or international acclaim.” O-1B category applies to those who demonstrated a “record of extraordinary achievement” in the motion picture or TV production. This list of occupations is in no way exhaustive. Indeed, the USCIS has given the O-1 category very broad interpretation, to allow aliens in most of fields of endeavor to obtain O-1 visas. Although the criteria for qualifying in this category is stringent, it is nevertheless, a very workable and important category, especially, since the Cap on H-1B visas makes it necessary to look for alternatives, of which the O-1 category may often be the optimal.
In order to evaluate correctly your eligibility for an O-1 visa, it is advisable to contact a knowledgeable immigration attorney, as the individual’s accomplishments should be evaluated in the context of their particular field of endeavor. A simple comparison to other professionals will most likely not yield an accurate evaluation. Our consultation is always free of charge.
Q: Who is eligible for O-1 visa?
A: A foreign national who possesses the extraordinary ability in sciences, arts, education, business, or athletics, and who is coming to the United States temporarily to continue the type of work in which s/he achieved the extraordinary ability. While the USCIS will require extensive documentation demonstrating that the person possesses the extraordinary ability, the position itself does not require a person of such abilities.
Q: What is “extraordinary ability”?
A: Extraordinary ability in science, education, or athletics has been interpreted to indicate a “level of expertise indicating that the person is one the small percentage who have arisen to the very top of the field of endeavor.” This can be demonstrated by 1) receipt of major internationally recognized award such as the Nobel Prize, or 2) at least three (3) of the following:
- Receipt of nationally or internationally recognized awards (which do not reach the level of a “major” award, such as the Nobel Prize;
- Membership in organizations that require outstanding achievement;
- Published materials about the applicant in professional or major trade publications;
- Participation on a panel or as a judge of the work of others;
- Original scientific or scholarly work of major significance in the alien’s field of endeavor;
- Evidence of authorship of scholarly work;
- Evidence of employment (past or present) in a critical or essential capacity at an organization with a distinguished reputation;
- Evidence of past or future high salary in relation to others working in the same field.
Since the regulations have been interpreted broadly to include many “fields of endeavor”, the criteria listed above may not fit the particular field. In such case, there may be presented comparable evidence. Defying the field of endeavor is one of the most critical issues in preparing good O-1 case also because it allows to better demonstrate that the applicant has arisen to the very top of the field. The narrower the field, the easier it is to demonstrate this.
“Extraordinary ability” in the arts means “distinction” or, in other words, “a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered”. This standard is lower than that in sciences or business. It only requires showing that the person be “prominent” in his/her field.
In order to show that the person is “prominent” in his/her field, the person must have been awarded or nominated for a significant international or national award, such as Academy Award, Emmy, Grammy, etc. or s/he must meet at least three (3) of the following criteria:
- Performed as a lead participant in production having a distinguished reputation;
- Received national/international recognition for achievements, as evidenced by critical reviews in major newspapers or trade publications;
- Performed in a leading or critical role for an organization with distinguished reputation;
- Has a record of major commercial or critically acclaimed successes;
- Achieved significant recognition from organizations, critics, government agencies or other recognized experts; or
- Evidence of past or future high salary in relation to others working in the same field.
Q: Will technical or creative staff qualify for O-1 visa?
A: The regulation, as interpreted, encompasses not only performers, but also essential technical and creative staff. Examples include designers, choreographers, trainers, etc. An important fact to remember is that while it is imperative to demonstrate, as described above, the O-1 caliber of the individual, there is no requirement that the job itself would require an individual of O-1 caliber.
Q: What are the advantages/disadvantages of O-1 visa in comparison to H-1B?
A: An important advantage of the O-1 visa category in this day and age is that there is no cap on O-1 visas, unlike H-1B visas. Another important factor to consider is that an O-1 petition may now be filed up one (1) year in advance, unlike H-1B petition.
Q: Is there an advantage of having an O-1 visa when applying for Green Card?
A: While there is no per se advantage of having O-1 status, it is a good enough indicator that the person may qualify for a Green Card in the category of “Persons of Extraordinary Ability” or as “Outstanding Professor or Researcher.” Those eligible to apply under this category do not have to go through a labor certification process and may apply directly to the USCIS.
Q: Is it possible to apply for O-1 without having an employer?
A: Yes, but this does not mean that O-1 person may be self-employed. The regulations allow for agents, managers, etc. to file O-1 petitions, where there is no appropriate employer.
Q: What is the time limit on working in O-1 status?
A: O-1 status may be granted for an initial period of no more than three (3) years. It may then by extend in one (1) year increments. An O-1 visa holder may be admitted up to 10 days prior to the validity period and may remain 10 days after the validity period, although s/he may not work during this time.
Q: Can you apply for Green Card while on O-1 visa?
A: Yes. Those in O-1 status may apply for a Green Card without endangering their O-1 status. Please explanation of dual intent doctrine in the next answer.
Q: What is dual intent in context of L-1 visa?
A: There is no foreign residence requirement for persons holding O-1 status. This means that filing a labor certification application or a permanent residence petition will not be a basis for denial of O-1 petition, extension of status, or admission to the U.S. in O-1 status.
Q: Can O-3 dependents work in the US?
A: No. In order to work in the U.S. those in O-3 status must seek a change of status to that which allows employment.
Q: What is “consultation” requirement?
A: Consultation, containing description of the O-1 person’s ability or achievements, from an appropriate union is generally required for adjudication of O-1 petitions where a labor union exists. If there is no union, then this requirement is waived. This most often comes up in the context of O-1 visa applications for entertainers, artists, and athletes. The consultations are not binding on USCIS and are of “advisory” nature. Practically, it is important to locate the right union early on in the process and request a consultation well in advance. Some unions charge a fee for providing consultations, some do not. A consultation will not be required for extensions of status, or for O-1 of extraordinary ability in arts who are returning to the U.S. within 2 years after the initial consultation was obtained, provided they are to perform similar services.
Q: What are the steps in obtaining O-1 visa?
A: The first step in O-1 process is usually obtaining a consultation for the appropriate union, unless this requirement is waived, as explained above. Once the consultation is on hand, a Petition for a Nonimmigrant Worker (“O-1 Petition”) is filed with the U.S. Citizenship and Immigration Services (“USCIS”). If the beneficiary of such petition is already in the United States in a different status, or if this is a petition for extension or amendment of status, and the request for change or extension of status is granted, this may be the last necessary step in the process. If the beneficiary of the H-1B petition is abroad, or if the is a need to obtain a U.S. visa (for example to be able to reenter the U.S. after a trip abroad), then the final step would be obtaining a visa at a U.S. consulate abroad.
Q: Can O-1 employee change employers? How is it done?
A: Yes, O-1 employee may change employers. This change in accomplished by filing a new O-1 petition for the new employer.
Q: Can spouses and children of O-1 aliens obtain a visa?
A: Yes, spouses and children of O-1 aliens may obtain O-3 visas, or if they are already in the United States in a different status, they may change their status to O-3.
Q: Can spouses and children of O-1 aliens work in the United States?
A: No. In order to obtain work authorization, spouses and children in O-3 status must qualify independently for another visa status, which allows for work authorization. They may do so while in the United States, without the need to depart and reenter.
Q: Is Premium Processing available for O-1 petitions?
A: Yes, Premium Processing is available for O-1 petitions.