O Visas for Extraordinary Ability or Achievement
The O-1 visa category is reserved for foreign nationals who, in short, possess extraordinary ability in various areas. The O-1 visa is divided into two categories: O-1A and O-1B visas. The O-1 visa also permits “dual intent,” which gives the foreign national the legal flexibility to be present temporarily in the United States while also being permitted to explore options leading to permanent residency and, eventually, naturalization. O-1 visas are, therefore, an attractive option for individuals seeking to cross the divide between nonimmigrant and immigrant visas. O-1 visas applications must be submitted either by a U.S. employer or a U.S. agent.
The O-1A visa is for foreign nationals with extraordinary ability in the sciences, education, business, or athletics. This visa category specifically excludes the arts and the motion pictures or television industry. In the application process, the petitioner must prove that the foreign national has received a major, internationally recognized award (e.g., Nobel Prize or Olympic Gold Medal) or, alternatively, evidence of at least three out of ten defined criteria defined in the regulations. Examples include lesser nationally or internationally recognized prizes or awards, published material about the foreign national in professional or major trade publications, or original contributions of major significance.
The O-1B visa is available in two different scenarios: for individuals with extraordinary ability in the arts or individuals with extraordinary achievement in the motion picture or television industry. Similar to the O-1A category, eligibility for the O-1B requires certain types of proof. The petitioner must demonstrate that the foreign national has either received (or been nominated) for a major award (e.g., Academy Award, Emmy, Grammy or Director's Guild Award) or must provide evidence proving at least three out of ten defined criteria. Examples include performing as a lead or starring participant in productions or events that have a distinguished reputation, national, international recognition for achievements proven by critical reviews or other published materials, or a record of major commercial or critically acclaimed successes.
O-1 petitioners are required to obtain a written advisory opinion from a peer group (which may include a labor organization) or a person designated by the group with expertise in the beneficiary’s area of ability. For O-1 motion picture or television industry applicants in particular, the consultation must come from an appropriate labor union and a management organization with expertise in the beneficiary’s area of ability.
The consultation requirement can be waived if the petitioner can demonstrate that an appropriate peer group, including a labor organization, does not exist. If proven, the application will be decided based on the evidence of record. Similarly, a consultation may be also 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.
Initial period of stay
O-1 visa holders may be admitted for an initial stay of up to 3 years. In the application process, USCIS will determine the necessary period of time to accomplish the event or activity and will grant the initial period accordingly. Petitioning employers may also request extensions of stay for O-1 visa holders.
Employers should note that if the O-1’s employment is terminated for reasons other than voluntary resignation, the employer must pay for the reasonable cost of return transportation to the O-1’s last place of residence before entering into the United States. If an agent filed the petition on behalf of an employer, the agent and the employer are equally responsible for paying these costs.
Certain foreign nationals may be able to accompany the principal O-1 visa holder through a derivative visa. For example, O-2 visas are available for individuals who are coming to the United States to assist the O-1. 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 must have 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. In addition to the O-2, spouses and children of either O-1 or O-2 visa holders may come to the United States through the O-3 visa.
Differences between O-1 and EB-1 visas
Many of the requirements for the EB-1 immigrant visa are quite similar to and confused with the O-1 visa. In fact, many potential applicants assume that the approval of an O-1 visa guarantees the approval of an EB-1 visa. Unfortunately, this is not always true. The critical difference between the two visa categories lies in the threshold level of achievement: the O-1 requires “a high level of achievement as evidenced by recognition substantially above that which is ordinarily encountered” but EB-1s are reserved for “the small percentage of individuals who have risen to the top of their field of endeavor.”