Q:
What
is O1 visa?
A: The O1 visa is a
non-immigrant employment-based visa classification for foreign nationals who can
demonstrate the sustained national or international acclaim and recognition for
achievements in the sciences, education, business, or athletics. It requires the
employer file a petition for a nonimmigrant worker, along with
evidence of the individual’s extraordinary ability. The extraordinary
ability in the field of sciences, education, business, or athletics means a level
of expertise indicating that the person is one of the small percentage who have
arisen to the very top of the field of endeavor.
The individuals must have "extraordinary ability" in their field of expertise. Such ability must be extensively documented and substantiated through awards, media attention received, and association with other renowned experts in the same field, and/or innovation or major contributions in the specific field of expertise among other forms of proof. National and/or international acclaim of the individual is important in establishing extraordinary ability.
The
O1 visa is
also available to those in arts, motion pictures and television who can demonstrate a
record of “extraordinary achievement.”
The USCIS interprets the statute very broadly to encompass most fields of
creative endeavor. The person entering the US must be coming to work in their field of
ability.
An individual seeking an
O1 visa must have a sponsor. This means that the visa is employer specific and a job offer is needed. For example,
an actor will need a studio to apply on his/her behalf.
Q:
What
is O1 visa's requirement for extraordinary ability?
The
O1 visa classification is intended for individuals with extraordinary ability
in the sciences, arts, education, business or athletics. To qualify, an
applicant must generally have extraordinary ability demonstrated by sustained
national or international acclaim. Artists and entertainers in the television
and motion picture industries are treated somewhat differently, and must
demonstrate a record of extraordinary achievement. These objective O1
requirements mean that applicants must present extensive documentation that
demonstrates that they have received recognition of their extraordinary
abilities and/or achievements from qualified, objective sources in their
occupational field.
O1
visas are based on a petition filed by a U.S. employer offering a specific job
in the U.S. that requires a person of extraordinary ability. Membership in a
group or team that has received recognition for extraordinary achievement is not
sufficient; the beneficiary must qualify on the basis of individual merit. The
petitioning employer must submit evidence that the prospective employee meets
the established O1 criteria, that the position offered requires an individual
of extraordinary ability, and that the individual is coming to the United States
to continue to work in the area of extraordinary ability. O1 status may be
granted for a maximum of three years at a time, and may be renewed indefinitely.
Q:
What are the O1 qualifications?
A:
The employment must be
in a capacity that requires the extraordinary ability. The job offer letter must
state the nature of the events or activities in which the individual will be
engaged, and it must specify the dates, for which work authorization is being
requested; no more than three years on initial applications, one year on all
subsequent petitions.
A written advisory opinion from a peer
group or recognized expert in the
field in the individual's area of ability is required. An example might be a
letters of
support from a renowned researcher, who attests the qualifications and work to be done by
the O1 beneficiary. Evidence that the alien is recognized nationally and internationally as
outstanding in their field should be included. The evidence should consist of at least
three of the following:
(1) Documentation of the alien’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
(2) Documentation of the alien’s membership in associations in the field, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
(3) Published material in professional or major trade publications or major media about the alien, relating to the alien’s work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation;
(4) Evidence of the alien’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization;
(5) Evidence of the alien’s original scientific, scholarly, or business-related contributions of major significance in the field;
(6) Evidence of the alien’s authorship of scholarly articles in the field, in professional journals, or other major media;
(7) Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation; or
(8) Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.
To
qualify for an O1 visa, an applicant must provide documents proving
extraordinary ability. Examples of proof of extraordinary ability include
nationally or internationally recognized prizes or awards for excellence,
membership in associations requiring outstanding achievements, and articles
written by or about the applicant.
To supplement these materials,
employer may submit
letters signed by experts in the applicant's field attesting to the applicant's
extraordinary ability in that field.
Q:
What are the Extraordinary
Ability requirements in the Arts?
A:
Arts
includes any field of creative activity or endeavor such as, but not limited to,
fine arts, visual arts, culinary arts, and performing arts. Also included in the
categories of essential technical or creative personnel are set designers,
choreographers, music coaches, and related professionals.
Employers
must show that the O1 artist is recognized as being prominent in his or her
field. In the special case of the motion picture or television industries,
employers must show that the O1 artist is recognized as having a demonstrated
record of extraordinary achievement in the industry.
In either case, this may be
done by showing that the artist has been nominated for or has received a
significant national or international award or prize, such as an Academy Award,
an Emmy, a Grammy, or a Director's Guild Award. Most individuals qualify by
submitting evidence in at least three of the following categories:
(1)
Has
performed or will perform services as a lead/starring participant in productions
or events with distinguished reputations as shown by critical reviews, ads,
publicity releases, publications, contracts or endorsements;
(2)
National
or international recognition for achievements through critical reviews, other
published materials by or about the beneficiary in major papers, trade journals,
magazines, etc.
(3)
Has
performed in a lead, starring or critical role for organizations and
establishments that have a distinguished reputation evidenced by media articles,
testimonials, etc.;
(4)
Has
a record of major commercial or critically acclaimed success;
(5)
Has
achieved significant recognition from organizations, critics, government
agencies, and/or recognized experts;
(6)
Has
commanded or will command a high salary or other remuneration in relation to
others in the field.
If the foregoing categories of evidence do not readily apply to a particular
individual, "comparable evidence" of extraordinary ability may be
submitted.
Q: What is the
advisory opinion?
A:
Before
an O1 visa can be granted, the applicant must go through a special consultation
process. The applicant must get an "advisory opinion" from a peer
group (a group of professionals in the alien's occupation or profession) or from
a union, labor, or management organization. An "advisory opinion" is a
letter from an organization stating that the position the applicant will hold
requires extraordinary ability.
The peer group must provide
a written opinion to the USCIS. If the application
does not include a peer group opinion, the USCIS will attempt to contact a
peer group directly. If no peer group exists, the USCIS will make a decision without a
peer group consultation.
The
USCIS will not require a new consultation if the
beneficiary is reentering the U.S. in the O1 category within two years of a
previous peer group consultation. Unlike the EB1-Extraordinary
Ability category, the
O1 category
requires employment and sponsorship by the employer.
Q:
What if there is no appropriate union exists in the case of arts?
A:
Consultation
with an appropriate peer group, labor and/or management organization regarding
the nature of the proposed work and the beneficiary's qualifications is
mandatory before an O1 petition can be approved. This requirement may be especially important in the arts,
entertainment fields, or athletics.
Advisory consultations are labor
consultations, unless no appropriate union exists. In this situation,
employers may submit an advisory opinion from an individual expert in the field,
a peer group, or management organization that describes the beneficiary's
ability and achievements, the nature of the duties to be performed, and whether
the services require someone of extraordinary ability.
Q:
Can the individual
work for more than one employer?
A: The answer is yes.
If the individual works for more than one employer at the same time, each
employer must file a separate petition with the USCIS.
Q:
What will happen
if the employment of the O1 holder is terminated?
A: If the employment
is terminated for reasons other than voluntary resignation, the employer is
liable for the reasonable cost of return transportation of the individual to
his/her last place of residence prior to entry into the US.
Q:
What if the O1
visa applicant has a permanent labor certification or has filed a preference
petition for permanent residence?
A:
USCIS regulations
state that the approval of a permanent labor certification or filing of a
preference petition for permanent residence shall not be a basis for denying an O1 petition, a request to extend such a petition, or the alien’s application
for admission, change of status, or extension of stay.
Q:
Is J1 nonimmigrant,
who is subject to the 2-year foreign residence requirement, required to fulfill
this requirement or obtain a waiver of this requirement before holding O1
nonimmigrant status?
A: The answer is
no. The J1 holder would be ineligible for changing his/her J1 nonimmigrant status
in the US, and must travel outside the US to apply for and obtain an O1
nonimmigrant visa to return for employment. According to USCIS, J1 nonimmigrant in valid status
may:
(1) have an O1 nonimmigrant visa petition
approved on his or her behalf, and
(2) proceed abroad and apply for and receive
from the State Department an O1 visa, without first having to fulfill the two
year foreign residence requirement or obtain a waiver thereof.
Q:
How
long can one maintain O1 status?
A: There is no maximum period for O1 status. Theoretically, it can be
indefinite. However, the length of the status is determined by the length of
time needed for the alien to perform his/her duties or activities with the US employer.
An initial stay is limited to no more than three years, provided the petition
can establish that the O1 alien will need this much time for the proposed
employment. This period may be extended at one-year increments thereafter, upon
evidence showing that the alien's continued presence would be required.
Q:
What is the extension of stay for O1 Visa?
A:
An O1 visa can be extended on a yearly basis for an indefinite period. The Form I-129 is to be filed by the employer to seek extension. Though the application for an extension does not include a consultation, it
however requires a statement of the reason for an extension.
Q:
What type of visa
will family members hold?
A: The spouse and
unmarried children under the age of twenty-one may apply for O3 visa or status, in
order to accompany the O1 visa holder to the US. The O3 visa status does not
confer authorization for employment in the US. The
spouse and children (under 21) of the O1 visa holder will be eligible for
derivative visas to accompany the employee on the U.S. assignment in the O3
classification.
Q: What is the O2 visa?
A:
An O2
visa can be obtained for those accompanying the O1 visa holder who will assist
the O1 alien in their performance. To qualify for an O2 visa, the applicant
must meet the following requirements:
- Be an integral part of the actual
performance;
- Have critical skills and experience
that cannot be performed by others
- In television and motion pictures, have
a long-standing working relationship with the O1 alien.
Evidence
must be submitted to establish the applicant's essential role, and that they
have skills and experience not possessed by an immediately available US worker.
Q: What is
the difference between O1 and EB1-Extraordinary Ability?
A: The requirements for
O1 visa or status are very similar to those for the
EB1-EA
(Alien of Extraordinary Ability) employment based permanent residence category.
The difference is that the O1 standards apply to those seeking a
non-immigrant status, while the EB1-EA standard is for those seeking permanent
immigrant status.
Q: As an employment related nonimmigrant status, what
is the difference between O1 and other employment related nonimmigrant status, like
H-1B?
A:
O1 status is distinguished from other employment related statuses in that it
applies to more types of work than other areas. For instance, H-1B status is
limited to foreign professionals with at least a bachelor's degree for a
specialty occupation, which cannot apply to alien athletes or entertainers
without such educational background. However, such as athletes or entertainers
can apply for O1 status. Moreover, the requirements of O1 are much higher than
that of H-1B. Also, O1 status could be obtained by those in H-1B status who
have exhausted the full-authorized stay of 6 years.
Q: How can I obtain an
O1 visa?
A: Your prospective employer or agent must first get an approved O1 petition from
the USCIS. After that you may apply for an O1 visa/status either in your home country
or in US.
Q: What should I prepare before I file my
O1
petition?
A: Usually, prior to your filing the
O1 petition, you should obtain an advisory
opinion from an appropriate consulting entity, such as a peer group, labor
organization, or management organization. The advisory opinion is to state
whether you qualify as an alien of extraordinary ability and whether such
extraordinary abilities are required for the activities to be undertaken by you.
In certain circumstances, this requirement can be waived or met by evidence that
such an opinion is not available.
Q: I am an artist and wish to apply for
O1 status?
What are the requirements for my application?
A: As an artist, in order to apply for
O1, you must show that you has acquired
"distinction" in your artistic field. "Distinction" means a
high level of achievement as evidenced by a degree of skill and recognition
substantially above that ordinarily encountered to the extent that the person is
described as prominent, leading, or well known in the field of arts.
Q: I am a movie star and wish to apply for
O1. What
are the requirements for the application of O1 as a movie or television star?
A: Persons in the motion picture or television industry must show a very high
level of accomplishment evidenced by a degree of skill and recognition
significantly above that ordinarily encountered to the extent that the person is
recognized as outstanding, notable, or leading in the industry. Thus, it is
understood that the requirements under the motion picture or television industry
are somewhat higher than those for the arts.
Q: I am an assistant to a movie star who is holding
an O1 visa. What kind of visa I should apply?
A: You may apply for an O2 visa. To qualify for
O2 status, you must be an
"integral part" of the actual performance and have "critical
skills and experience" with the O1 alien which are not of a general nature,
and which cannot be performed by U.S. workers.
Q: How can an alien change into
O1 status in the
U.S.?
A: When the alien is already in the U.S., he
or she can change other nonimmigrant
status into O1 status inside US, if he or she qualifies as an O1 alien.
This option is not
available to aliens who entered the US without inspection or who had overstayed
their authorized term of admission under the previous status. Further, an alien
who is subject to the J1 two year foreign residency requirement may not change
his or her status in the US and must obtain an O1 visa outside US after the O1 petition
is approved.
Q: Can I apply for O1
visa by myself?
A: The O1 visa can not be petitioned be yourself. A beneficiary must have a sponsor
to apply for the status. The employer should file a petition at the USCIS Service Center that has jurisdiction over the state in which the employment is
sought. The petition must be supported by a
recommendation in print from a "peer group" or "a person with
proficiency" in the beneficiary's field or an organization known for its
expertise in the beneficiary's field.
Only one beneficiary should be included in an O1 petition. A United States employer, a United States agent, or a foreign
employer through a United States agent may file an O1 petition.
Q: Can I work at more than one
location?
A: A
petition that requires the applicant to work in more than one location must include an itinerary with the dates and locations of the performances
and must be filed with the service center, which has jurisdiction over the area
where the petitioner is located.
If the
beneficiary or beneficiaries will work for more than one employer within the
same time period, each employer must file a separate petition with the USCIS Service
Center that has jurisdiction over the area where the services will be performed.
Q: Who is eligible for an O2 Visa?
A: To be eligible for an
O2 visa, you must meet the following criteria:
-
Have a vital role in the central performance;
-
Have essential skills and a wealth of experience that is above average standards;
-
Have a committed professional association with the
01 visa holder;
-
Must prove the possession of a foreign residence, which will not be abandoned. A specific date of exit should also be expressed;
-
Must gain a labor consultation from the Labor Organization stating that there are no American individuals who can assist, and the
O2 beneficiary is essential for the fulfillment of the O1 visa holder's work.
Q: What is the duration of stay for O2 Visa?
A: The initial stay is 3 years. The
extension of stay is in
increments of up to 1 year. An O2 visa is valid till the time
the O1 visa holder accomplishes his/her task.
Q:
How can I extend my stay with an O2 visa?
A: Since you are accompanying the
O1 visa holder, you are permitted to stay as long as the set task is accomplished. The extension is
given in yearly increments. The employer has to file Form I-129 for an extension.
Since the O1 visa is employer specific, and O2 visa holders act as support staff to the
O1 visa holders, the employer must file a petition on the Form I-129 with the
USCIS Service Center having jurisdiction over the region where the task is to be
carried out.
Application for an
O2 status must be filed on a separate petition. A United States employer, a United States agent, or a foreign employer through a United States agent may only file an
O2 petition. More than one accompanying personnel may be included on a petition if they are assisting the same
O1 applicant for the same events or performances, during the same period of time
and in the same location.
Q:
What is O3 Visa?
A: O3 visas are issued to the immediate family members,
spouse and unmarried minor children, of the O1 and the O2 visa holders. The
initial stay is 3 years, and increments of up to 1 year. The O3 visa is valid till the time the principal applicants accomplish the task.
Q:
What is the extension of stay for O3 Visa?
A: The dependents of
O1 or O2 visa holders are allowed to stay till the time the principal applicant accomplishes the
task. The dependent has to file a petition on the Form I-539 for an extension. The extension is given in yearly increments.
Since the O1 and O2 visa is employer specific, and O3 visa holders are the dependents, i.e. the spouse and unmarried minor children of the
O1 visa holders.
Q: I will graduate with my PhD degree next year spring. I know there
may be no H-1B number available at that time. Is it possible for me to change to
O1 status if I meet the qualification requirements?
A: Yes, with your PhD degree, you may qualify to apply for
O1 status, when there is no H-1B number available and an U.S. employer wants to hire you. The
O1 status is distinguished from other employment related status in that it applies to more types of work than other areas. But the requirements of
O1 are much higher than that of H-1B. Also, O1 status could be obtained by those in H-1B status who have exhausted the full-authorized stay of 6-year limit.
Q: I am in J-1 status subject to the
2-year home country residence requirement, and it is now impossible for me to obtain a waiver of the 2-year home country service requirement. May I apply for
O1 status in U.S. to continue my research project, instead of going back to my home country?
A: As a J-1 holder, you can change to
O1 visa, but you have to apply for an O1 visa from a U.S. Consulate abroad, because you may not change to a non-immigrant status in the U.S. before you satisfy the two years home country residence requirement or obtain a waiver to the requirement.
Your employer needs to file an
O1 petition to the USCIS. Once the O1 petition is approved, you need to apply for
O1 visa at a U.S. consulate abroad. After you obtain an O1 visa, you can enter the U.S. without fulfilling the
two year residency requirement or getting a waiver of the requirement.
Q:
I am a research associate in an university with H-1B visa. I submitted my I-140 application in EB1 Extraordinary Ability category, and still waiting for USCIS approval.
But now, my H-1B visa will reach 6 year limit soon, I just want to know that if I am eligible to apply for
O1 visa, so I will not have H-1B visa 6 year limit problem.
A:
O1 visa is for someone who has "extraordinary ability" in his/her field of sciences, education, arts, athletes, and business. The
O1 holder enjoys all the benefits which are not allowed in other employment-based nonimmigrant categories.
If you have applied for I-140 application in EB1 Extraordinary Ability category, you may qualify for
O1 visa. So you will not subject to the labor condition application unlike H-1B. More importantly, after changing to
O1 visa status, you do not have H-1B 6-year limit.
Q:
What if the O1 visa applicant has a permanent labor certification or has filed a
petition for permanent
residence?
A: USCIS regulations state that the approval of a permanent labor certification or filing of a preference petition for permanent residence shall not be a basis for denying an
O1 petition, a request to extend such a petition, or the alien’s application for admission, change of status, or extension of stay.
Q:
What would happen if the employment of the O1 holder is
terminated?
A: If the employment is terminated for reasons other than voluntary resignation, the employer is liable for the reasonable cost of return transportation of the individual to his/her last place of residence prior to entry into the US.
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