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O-1 VISA: Individuals with Extraordinary Ability or Achievement

Raul Perez, Esq., Miami Immigration Attorney

Raul Perez, Esq., Miami Immigration Attorney

O-1 Visa General Information

The O-1 is reserved for individuals who can demonstrate extraordinary ability in the field of science, art, education, business, or athletics, or those who have demonstrated extraordinary achievements in motions pictures or television.[1] The O-1 visa is a non-immigrant employment-based for temporary workers, with an initial period of stay of up to three (3) years.[2] The actual length of stay will be determined by the length of employment. To be more accurate, there are actually four O visas:

1. O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics;

2. O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry;

3. O-2: individuals who will accompany an O-1, artist or athlete, to assist in a specific event or performance; and

4. O-3: individuals who are the spouse or children of O-1’s and O-2’s.[3]

Requirements for the O-1 Visa

There are several requirements which must be met before an application can filed:

1. The foreign individual who is seeking the O-1 visa must have a U.S. Employer or U.S agent file a petition.[4] The employer will act as a sponsor, who vouches for the foreign individual extraordinary abilities by offering them a job. The employer must demonstrate a contract between the parties or a summary of the terms of the oral contract and an explanation of the event outlining the duration of the event.[5] The individual themselves cannot self-petition for an O-1 visa. The form required to submit the visa application is Form I-129, Petition for a Nonimmigrant Worker.[6]

2. The individual must receive an advisory opinion from a trade or consulting organization, or a reputable peer group stating that the individual does have a sustained reputation of extraordinary ability.[7] If there is no applicable peer group, then the individual will have to acquire letters from person with expertise in the beneficiary’s area of ability. There is an exception to this rule if no peer group or labor organization exist.[8]

3. The individual must demonstrate extraordinary abilities in the field of his/her profession. The term extraordinary ability differs for an O-1A (sciences, education, business, or athletics) and O-1B (arts or motion picture or television industry) visa. For an O-1A, extraordinary ability 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.[9] For an O-1B, extraordinary ability distinction with regards to the field of arts.[10]Distinction means a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.[11] Extraordinary abilities with respect to motion picture and television productions means a very high level of accomplishment in the industry evidenced by a degree of skill and recognition.[12] The criteria for each are similar yet different. Below are the requirements to show extraordinary abilities for each:

O-1A:

An O-1A (sciences, education, business, or athletics) must demonstrate 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:

i. Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

ii. 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;

iii. Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought;

iv.Original scientific, scholarly, or business-related contributions of major significance in the field;

v. Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought;

vi. A high salary or other remuneration for services as evidenced by contracts or other reliable evidence;

vii. 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; or

viii. Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation. [13]

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.[14]

O-1B:

An O-1B (arts or motion picture or television industry) must demonstrate 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:

i. 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;

ii. 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;

iii. 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;

iv. 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;

v. 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; or

vi. 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 exception does not apply to the motion picture or television industry).[15]

The Other Visas

The O-2 visa are for individuals who accompany an O-1 visa applicant, but this visa is limited to those accompanying artist or athletes.[16] There cannot be an O-2 beneficiary without an O-1 beneficiary to support. An O-2 beneficiary must be petitioned for in conjunction with the O-1 beneficiary.[17] Further, the O-2 beneficiary can only work alongside the O-1 beneficiary.

There are multiple factors which must be demonstrated to qualify for an O-2 visa. The O-2 beneficiary must be accompanying the O-1 to assist him/her, have critical skills and experience with the O-1 which is not of a general nature and cannot be readily performed by a U.S. worker and is an integral part of the performance.[18] The individual must also obtain a peer group (which could include a person or persons with expertise in the field), labor and/or management organization opinion.[19]  The advisory opinions must describe the alien’s essentiality to and working relationship with the O-1 artist or athlete and indicate whether there are U.S. workers available to provide the necessary support services. In addition, if an O-2 beneficiary is accompanying an O-1 beneficiary involved in a motion picture or television production, the O-2 beneficiary must show skills and experience which are critically based on a pre-existing longstanding working relationship or, the continuing participation of the O-2 beneficiary is essential to the successful completion of the production.[20]

The O-3 visas are available to the spouse and unmarried minor children of O-1 and O-2 visa beneficiary.[21] The children cannot be more then twenty-one years of age. The O-3 visa individual can stay with the United States for the same period as the O-1 or O-2. They cannot work unless they are granted authorization but may attended school.[22]

Give us a call if you have any questions or comments. As always, we are here to assist you with all your legal needs.

 

[1] 8 USCS § 1101(a)(15)(O)(i), 8 U.S.C.S. § 1184(c)(6)(iii)(E), 8 C.F.R. § 214.2(o).

[2] 8 C.F.R. § 214.2 (o)(6)(1)(iii).

[3] O-1 Visa: Individuals with Extraordinary Ability or Achievement, U.S. Citizen and Immigration Services, (Last Reviewed 01/05/2017), https://www.uscis.gov/working-united-states/temporary-workers/o-1-visa-individuals-extraordinary-ability-or-achievement.

[4] 8 C.F.R. § 214.2(o).

[5] 8 C.F.R. § 214.2(o)(2)(ii).

[6] O-1 Visa: Individuals with Extraordinary Ability or Achievement

[7] 8 C.F.R. § 214.2 (o)(5).

[8] 8 C.F.R. § 214.2 (o)(5)(G).

[9] 8 C.F.R. § 214.2 (o)(3)(ii).

[10] 8 USCS § 1101(a)(46).

[11] 8 C.F.R. § 214.2 (o)(3)(ii). O-1 Visa: Individuals with Extraordinary Ability or Achievement

[12] 8 C.F.R. § 214.2 (o)(3)(ii)

[13] 8 C.F.R. § 214.2 (o)(3)(iii).

[14] Id.

[15] 8 C.F.R. § 214.2 (o)(3)(iv)-(v).

[16] 8 C.F.R. § 214.2 (o)(4)(i).

[17] Id.

[18] 8 C.F.R. § 214.2 (o)(4)(ii).

[19] 8 C.F.R. § 214.2 (o)(5).

[20] 8 C.F.R. § 214.2 (o)(4)(ii)(B).

[21] 8 C.F.R. § 214.2 (o)(6)(1)(iv).

[22] O-1 Visa: Individuals with Extraordinary Ability or Achievement

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