O-1 visa requirements are fairly straightforward but can be difficult to prove without a thorough understanding of this visa category. There are two categories of O-1 visas: O-1A and O-1B. The O-1A is for persons of “extraordinary ability” in business, science, education, or athletics, while the O-1B is for those who have “extraordinary ability” in the arts or “extraordinary achievement” in motion picture and or the television industry. An O-1 visa may be granted for an employment position, a single event or a series of events. Examples of eligible events include, a scientific project, conference, convention, lecture series, tour, exhibit, business project, an academic year, or engagement. Both the O-1A and O-1B visa sub-categories allow visas for support staff and family. The O-2 visa is for accompanying staff, which is integral to the O-1 visa holders’ performance, while the O-3 visa is for dependent spouse and children.

“Extraordinary ability” in terms of a O-1 visa, means that the beneficiary is “one of the very small percentage who have risen to the very top of the field of endeavor.” This applies to the field of science, education, business, or athletics. Executives, scientists, athletes, physicians, entrepreneurs, and former athletes who have transitioned to coaching are examples of occupations that may be eligible for an O-1A visa. To prove O-1A eligibility, United States Citizenship and Immigration Services (“USCIS”) requires either a major internationally recognized award, such as a Nobel Prize, Olympic medal or Laureus World Sports Award. If the beneficiary does not have any of these awards or awards of similar prestige he or she must have received a less-known nationally or internationally recognized award and must have continuously contributed to his or her field. The petitioner must submit evidence from at least two of the categories below, to prove “contribution to the field:”

 

1. Proof of membership in an exclusive organization in your field;

2. Participation on a panel or individually as a judge in your field;

3. Mentions of your published material in trade publications;

4. Written scholarly articles in your field in professional journals or other major media;

5. Evidence that you command a high salary; and

6. Evidence that you have held critical positions for esteemed organizations in your field.

“Extraordinary ability” for an O-1B visa in the arts means “distinction.” Distinction is “a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered.” Examples of occupations that may qualify include actors, musicians, fashion designers, set designers, lighting designers, sound designers, choreographers, choreologists, conductors, orchestrators, coaches, arrangers, musical supervisors, costume designers, makeup artists, flight masters, stage technicians, and animal trainers. For an O-1B visa in motion picture or TV production, the applicant must have a “demonstrated record of extraordinary achievement.” Film producers and directors are two examples of occupations in this field. There may be an overlap between the arts and motion picture/TV production and some occupations may be suitable for both fields. For an O-1B visa in the arts, motion picture or TV production, the applicant must either be nominated for or be the recipient of a significant international or national award or prize, such as the Pulitzer Prize, Grammy, Academy Award, Emmy or Director’s Guild Award OR have at least three of the following:

1. Lead in a production of distinguished reputation;

2. Critical reviews in major newspapers or trade journals;

3. Lead for an organization that has a distinguished reputation;

4. Record of major commercial or critically acclaimed successes;

5. Significant recognition from organizations, critics, government agencies or other experts in the field; or

6. Has or will command a high salary.

All “O” categories need an advisory opinion from a consultative organization, such as a peer group, labor organization, and or management organization. The consultation letter should describe the O-1A or O-1B’s achievements. If there is no appropriate union, the consultation may be waived.

O-1 visa employer requirements are stated in the Immigration and Nationality Act and must be met for an O-1 petition to be approved. An O-1 applicant cannot petition for himself or herself. A U.S employer or U.S. agent, must file the I-129 petition for an O-1 visa. U.S. agents file applications on behalf of American and foreign employers and O-1 beneficiaries who are self-employed.

The employer must be a legal entity with a valid employer identification number. A petitioner-agent must be “in the business” of being an agent. Evidence of this includes, fee arrangements, affidavits from other employers and beneficiaries who were represented by the agent, and agency contracts.

As evidence, the employer should submit written contracts between the petitioner and the beneficiary or, if there is no written contract, a summary of the terms of the oral agreement under which the beneficiary will be employed. The employer should also include an explanation of the nature of the events or activities, the beginning and ending dates and a copy of any itinerary.

The employer cannot file more than one year before work starts but should file at a minimum 45 days before employment. An O-1 beneficiary may work at multiple locations and with multiple employers. An O-1 visa is granted for three years or less and O-1 extensions are granted in 1-year increments for the same event. The beneficiary may be admitted 10 days before and 10 days after the validity of the visa but cannot work during this time. There is no limit on the number of years that person may spend in O-1 status.

An O-1 visa beneficiary may have dual intent. He or she is not required to maintain a foreign home residence, while in the U.S. An O-1 beneficiary who is in the U.S. in a different visa category may submit a change of status or can undergo consular processing, once the I-129 petition is approved. Dual intent allows the O-1 beneficiary to complete a green card process while in O-1 status. If the green card petition is denied, however, the O-1 beneficiary will have to leave the United States at the conclusion or termination of O-1 status.

O-1 visa to green card is the goal of many O-1 beneficiaries. There are three types of immigrant visas that are suitable for this purpose. The EB-1A green card is reserved for applicants of extraordinary ability in the sciences, arts, education, business or athletics. It does not require labor certification or evidence of an offer of employment. The criteria is similar to that of the O-1A but qualification is not automatic. Some O-1 to EB-1A and some petitions are denied, so it is best to consult an experienced immigration attorney to minimize the risk of this happening.

The EB-1B green card is reserved for outstanding researchers and professors. Like the EB-1A, there is no labor certification requirement but an offer of employment is required. The EB-1B beneficiary must be recognized internationally as outstanding in the academic field and have three (3) years experience in teaching or research, in the specific academic area. The beneficiary must be entering the U.S. for a tenured teaching position or tenure track at a university or institution of higher education, a tertiary level research position, or a comparable research position with a private employer. If the category is current, the petitioner may file an adjustment of status application along with the I-140 petition.

The EB-2 national interest waiver green card suits professionals with an advanced degree or who has exceptional ability, in the sciences, arts or business. and will substantially benefit the U.S. economy, culture or educational interests. The “art” category includes athletes and entertainers. A masters degree or higher is an advanced degree, while a bachelor’s degree plus five years of progressive experience in the field is the education and work experience equivalent. The applicant must have a job offer. Labor certification is not required.

O-2 visa requirements have some similarities with the O-1. Both visas require a consultation letter from the appropriate organization that describe the beneficiary’s skill and experience. The O-2 visa is for persons who would like to accompany or assist an O-1 artist or athlete. There is no O-2 visa for accompanying staff in the fields of business, education, or science. The O-2 beneficiary should possess skills and essentiality to the O-1 beneficiary and must have prior experience working with the O-1. For motion picture or television productions, there must be a pre-existing, longstanding relationship.

An O-2 must be integral to the actual performance, has critical skills that cannot be performed by other individuals and has a foreign residence that he or she does not plan to abandon. The O-2, applicant cannot have dual intent. For O-2’s accompanying O-1s in motion picture and television, an applicant should provide evidence that significant work production has taken place outside the US and that the O-2’s participation is critical to the success of the production.

O-2’s work status and work authorization may be granted for the full duration of the O-1’s status.

O-3 visas are for minor unmarried children, under 21 years old and the spouse of a O-1 beneficiary. They may accompany the O-1 beneficiary or follow to join, within 1-year of the O-1 obtaining his or her visa. An O-3 dependent may not accept employment in the United States but may attend school.

O-1 visa costs can be divided into the following categories: I-129 petition fees, visa fees and attorney’s fees. The I-129 petition costs $460, with regular processing. It takes approximately three (3) months to process but this time can be shortened to 15 days if the petitioner requests premium processing and pays an additional $2,500. If the petition is approved, the applicant pays a $160 visa application fee to the Department of State. Attorney’s fees, for an experienced immigration attorney to assist with the process, begin at $3,500.

My name is Cheryl Fletcher. I am a U.S. immigration lawyer and the founder of Fletcher Law. As an immigration lawyer, I help families, professionals, investors, and entrepreneurs get visas, green cards, and United States citizenship.

After reading this article, you should have a better understanding of the O-1 visa requirements, the basics of qualifying for an O-1 visa and how long the process should take. If you would like a personal analysis of your situation, please feel free to contact us at 561-507-5772 or send us an email at: [email protected].