What is O-1 Visa?
O-1 Visa is a non-immigrant temporary worker visa granted by the United States to an alien “who possesses extraordinary ability in the field of sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television and has been recognized nationally or internationally for those achievements”, and to certain assistants and immediate family members of such aliens.
Who is Eligible for an O-1 visa?
The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in:
It is also granted to a person who has achieved national or international accolades for a motion picture or television industry
There are three subcategories for this visa:
- O-1A: individuals with an extraordinary ability in the:
- Athletics (not including the arts, motion pictures or television industry)
- O-1B: individuals with an extraordinary ability in the
- Extraordinary achievement in a 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
O-3: is granted to individuals who are the spouse or children of O-1’s and O-2’s
What is the General Eligibility Criteria for the O-1 Visa:
- The beneficiary must demonstrate extraordinary ability by sustained national or international acclaim
- 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 very high level of expertise, it also means belonging to a part of the group of the small percentage of the population who has risen to the very top of the field of endeavor
- “Extraordinary ability” in the field of arts means distinction
- Distinction means a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinary
- 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 in motion picture and television productions
- It means a very high level of accomplishment in the motion picture or television industry as evidenced by a degree of skill and recognition significantly above that ordinary
- The person is also recognized as outstanding, notable or leading in the motion picture and/or television field
What is the Application Process for Filing O-1 Visa?
- The petitioner should file Form I-129, Petition for Nonimmigrant Worker
- The petition may not be filed 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
What are the Required Documents?
- A written advisory opinion from a peer group (including labor organizations) or a person with expertise in the beneficiary’s area of ability
- When an advisory opinion includes a watermark or other distinctive marks to confirm the authenticity of the document the petitioners should submit to USCIS the version containing the watermark or other distinctive marks
- If the petitioner can demonstrate that an appropriate peer group, including a labor organization, does not exist, then the decision will be based on the evidence of record
- A consultation may be waived for an alien with extraordinary ability in the field of arts if the alien seeks readmission to perform similar services within two years of the date of a previous consultation
- Petitioners should submit a waiver request and a copy of the previous consultation with the petition
Contract Between Petitioner and Beneficiary
- A copy of any written contract between the petitioner and the beneficiary or a summary of the terms of the oral agreement under which the beneficiary will be employed
- USCIS will also accept an oral contract, as evidenced by the summation of the elements of the oral agreement
The oral summation need not be signed, but must document the terms of the employment offered and that the beneficiary has agreed to the offer
- An explanation of the nature of the events or activities
- The beginning and ending dates for the events or activities
- A copy of any itinerary for the events or activities
- The petitioner must establish that there are events or activities in the beneficiary’s field of extraordinary ability for the validity period requested
Important Notes about Agents:
- A U.S. agent may be the actual employer of the beneficiary
- The representative of both the employer and the beneficiary
- A person or entity authorized by the employer to act for, or in place of, the employer as its agent
2. Agents for Multiple Employers
A petitioner who will be filing as an agent for multiple employers must establish that it is duly authorized to act as an agent for the other employers. Additionally, agents filing O petitions for multiple employers must include with the petition:
- Contracts between the actual employers and the beneficiary;
- An explanation of the terms and conditions of the employment with required documentation; and
- Supporting documentation including a complete itinerary of the event or events that specifies the dates of each service or engagement
- The names and addresses of the actual employers, and the names and addresses of the establishments, venues, or locations where the services will be performed
3. Agent Performing the Function of an Employer
A petition filed by an agent performing the function of an employer must include:
- The contractual agreement between the agent and the beneficiary which specifies the wage offered and the other terms and conditions of employment
- This can be a summary of the terms of the oral agreement or a written contract
- A contract is not required between the beneficiary and the entities that will ultimately use the beneficiary’s services
- A petition which requires the alien to work in more than one location must include an itinerary with the dates and locations of work
- There are no exceptions to the itinerary requirement when the petition is filed by an agent performing the function of an employer
- The itinerary should at a minimum indicate what type of work the beneficiary will be engaged, where, and when this work will take place
- The petition must be submitted with evidence regarding the wage offered
- However, the regulations do not contain a prevailing wage requirement
- A detailed description of the wage offered or fee structure and that the wage offered/ fee structure was agreed upon may satisfy this requirement
4. Agent for Foreign Employers
Agents filing O petitions for foreign employers must submit the minimum general documentary evidence as required for all O-1 petitions, which include:
- Copies of any written contracts between the foreign employer and the beneficiary
- Or a summary of the terms of the oral agreement under which the beneficiary will be employed
- An explanation of the nature of the events or activities, the beginning and ending dates for the events or activities
- A copy of any itinerary for the events or activities
- A written advisory opinion from the appropriate consulting entity or entities unless an exception to the consultation requirement applies
What are the Evidentiary Criteria for O-1A?
Evidence that the 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 national or international experts in the field
- Published material in professional or major trade publications or major media about the beneficiary related to the beneficiary’s 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
- The beneficiary will command 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 classification is sought
- Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation
Note: If the above criteria do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence in order to establish the beneficiary’s eligibility.
What are the Evidentiary Criteria for O-1B?
Evidence that the 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 and 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 beneficiary in major newspapers, trade journals, magazines, or other publications
- Performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials
- Demonstrated 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 beneficiary is engaged, with the testimonials clearly indicating the author’s authority, expertise and knowledge of the beneficiary’s achievements
- Commanded a high salary or will command 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 beneficiary’s occupation in the arts, the petitioner may submit comparable evidence in order to establish eligibility (this comparable evidence exception does not apply to the motion picture or television industry).
What is the Application Process for O-2 Visa?
Consultation and Agent requirements are pretty much similar, but the O-2 beneficiary has to prove he/she has substantial experience performing the critical skills and essential support services for the O-1.
How Long Can I Stay in the USA in O Visa?
- USCIS will determine the time necessary to accomplish the initial event or activity in increments of up to 1 year
- New petitions involving new events or an event that, on a case-by-case basis is determined to be materially different from the event in the initial petition may be approved for up to 3 years
- As an O nonimmigrant, the beneficiary may 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
- The beneficiary may only engage in authorized employment during the validity period of the petition.
What About my Dependants?
- 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/O-2 nonimmigrant
- They may not work in the United States under this classification, but they may engage in a full or part-time study on an O-3 visa
What About Change of Employment?
- It is possible to change employer, but your new employer must file a Form I-129 with the USCIS office listed on the form instructions
- If the petition was filed by an agent, an amended petition must be filed with evidence relating to the new employer and a request for an extension of stay
- USCIS may consider an O-1 nonimmigrant to be maintaining status, following cessation of employment, for up to 60 days during the period of petition validity (or other authorized validity period)
- Being a famous artist, athlete or actor certainly doesn’t hurt your chances but it is not required
- You should be well recognized in your specific field of expertise, but being a celebrity is not required
- Aside from art, motion pictures and television, applicants can also excel in the industries of science, education, and business
Because the O-1 Visa requires extensive documents and has many intricacies, you should contact a legal immigration expert who can support and guide you through the process. Save yourself stress by working with reliable lawyers.