Q: What is O-1 visa, or O-1 extraordinary ability visa?
A: The O-1 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 O-1 visa is for persons of extraordinary ability in the arts, sciences, education, athletics, television, and motion picture industry. 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 O-1 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 O-1 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 O-1 visa's requirement for extraordinary ability?
The O-1 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 O-1 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.
O-1 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 O-1 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. O-1 status may be granted for a maximum of three years at a time, and may be renewed indefinitely.
Q: What are the O-1 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 O-1 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 O-1 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 O-1 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 O-1 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: Who can file O-1 visa petition?
A: Under USCIS regulation, O-1 petitions may only be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent.
The O-1 regulations provide that if the beneficiary employee will work concurrently 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 alien will perform services, unless an 'established agent' files the petition.
Q: What are the O-1 visa's advantages over H-1B visa?
A: O-1 visa is an non-immigrant visa for outstanding aliens with extraordinary ability to do specialized work in the United States, in the fields of sciences, arts, athletics, education, and business. As a a basic requirement, a job offer from a U.S. employer is needed to apply for an O-1 visa. Not like H-1B visa, there is no annual number limit for O-1 visa. Some important points and advantages of the O-1 visa include:
the O-1 visa holder can work in the United States legally for the sponsored employer;
generally, O-1 visa application can be approved fairly quickly;
the O-1 visas could be approved for the time period necessary for a particular project or event, up to a maximum of 3 years, with unlimited extensions in 1 year increment;
the O-1 visa holder and his or her family members can travel in or out U.S., as the O visa stamp and status are valid;
an O-1 visa holder's spouse and unmarried children under age 21 can accompany the O-1 visa holder in the United States, but they cannot work in U.S.;
if an O-1 visa worker want to change job, a new visa is necessary.
Q: What is the advisory opinion?
A: Before an O-1 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 O-1 category within two years of a previous peer group consultation. Unlike the EB1-Extraordinary Ability category, the O-1 category requires employment and sponsorship by the employer.
Q: I am an accomplished costume designer with a B2 visa in US now. I can apply for O-1B visa to work for a design company in New York City?
A: An O-1B visa petition is for an alien of extraordinary ability in the arts entering the United States to work in his or her area of expertise. The "extraordinary ability" for purposes of the arts means a high level of achievement in the field, substantially above the ordinarily encountered.
With a well-crafted visa petition, seasoned or accomplished artists, those who have achieved sudden success, and even students prodigies who function at a level appropriate to O-1B status should qualify. For O-1B purposes, the definition of arts and artists are broad - any field of creative activity or endeavor such as fine arts, visual arts, culinary arts, and performing arts.
Aliens engaged in the field of arts include the principal creators, performers, and essential persons such as, directors, set designers, lighting designers, sound designers, choreographers, choreologists, conductors, orchestrators, coaches, arrangers, musical supervisors, costume designers, makeup artists, fight masters, stage technicians, and animal trainers.
Thus, "arts" is a term that encompasses a full range of people. Under this definition, artistic administrators, music teachers, vocal coaches, and many others who contribute to the creative process may qualify for O-1B status. Even a highly skilled craftsman, such as a stage technician who contributes to the creative process, may qualify also.
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 O-1 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: What are the special requirements for an agent to file O-1 visa petition?
A: A petition filed by an agent is subject to several conditions. A petition involving multiple employers may be filed by a person or company in business as an agent as the representative of both the employers and the beneficiary, if:
The supporting documentation includes a complete itinerary of the event or events.
The itinerary 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.
The contract between the employers and the beneficiary is submitted.
The agent explains the terms and conditions of the employment and provides any required documentation.
Q: Can an agent file a O-1 petition on behalf of multiple employers?
A: An agent who is also the beneficiary's employer may file a petition, but the agent must specify the wage offered and the other terms and conditions of employment as described in the contractual agreement between the agent/employer and the beneficiary employee.
Therefore, while the regulations permit an agent to file a petition on behalf of multiple employers including the agent/employer itself, the regulations require that the agent be 'in business' as an agent. An employer that files a petition on behalf of other employers under the guise of being such employers' 'agent' does not meet this condition.
Q: How to establish the eligibility of O-1 visa application?
A: The basic requirement for EB1 Extraordinary Ability application is that you must be able to establish that you have extraordinary ability in your field. The O-1 visa is for alien applicants who are recognized as extraordinary in a field, and who are coming to U.S. to continue their work in the field.
To establish the eligibility of O-1 application, the alien applicant must demonstrate national or international acclaim, and that the alien applicant's achievements have been recognized in the field, as listed in the 8 criteria for O-1 Extraordinary Ability visa category.
The submitted evidence for O-1 visa application should meet the following requirements:
- The O-1 visa application should determine which of the 8 criteria the alien beneficiary is attempting to satisfy, and provide the relevant evidence for the individual criterion.
The extraordinary ability in the sciences, education, business, or athletics must be demonstrated by sustained national or international acclaim
Q: How to meet the O-1 visa criterion of nationally or internationally recognized prizes or awards for excellence in the field?
A: The receipt of nationally or internationally recognized prizes may include internationally recognized award such as a Nobel or Pulitzer Prize, or other less important but nationally or internationally recognized prizes or awards for excellence in the field.
This O-1 visa criterion is intended for the prestigious awards. It is important to include not just proof of the award, but proof that the award is important in the field. This may include the judging criteria or evidence of media coverage, and some degree of prestige must attach to the given award.
Q: How to meet the O-1 visa criterion of alien's membership in associations in the field?
A: Associations that are open to all members of a given profession may be considered, but associations that limit membership to only the most accomplished members of the profession are certainly more valuable.
Specialized scholars frequently belong to associations. However, most scholars with the appropriate degree are eligible for such associations upon payment of a membership fee. For a membership to have weight in this category, there must be a higher selective standard for admission to the association. The alien applicant should submit evidence of selective membership criteria along with evidence of membership in the association.
Q: How to meet the O-1 visa criterion of published material in professional or major trade publications or major media about the alien?
A: The published material must concern the alien's work in the field. Publications could range from journals specific to the field to major newspapers.
To satisfy this O-1 visa criterion, the published material should be at the national or international level. Articles in local newspapers or internal company reports do not qualify. Moreover, standard academic citations do not count as published material about the alien beneficiary.
Q: How to meet the O-1 visa criterion of the alien's participation as a judge of the work of others in the field?
A: Participating in the peer review process of a scientific article or acting as a member of a thesis review committee may fulfill this requirement.
Reviewing grants or articles can also satisfy this criterion, if the review request is directed particularly to the alien beneficiary. Generic letters or requests passed down from an advisor or mentor can not be accounted.
Q: How to meet the O-1 visa criterion of the alien's original scientific, scholarly, or business-related contributions of major significance in the field?
A: This O-1 visa standard is wide open. Basically, the USCIS will base its judgment of the contribution of the applicant on the letters of support that others in the field submit.
Evidence submitted in this category must address the international reputation standard. Simply publishing or presenting an alien’s work or receiving grant funding is common in research, and does not indicate that the academic community has taken notice of his or her work. Patents or patent applications carry little weight unless they demonstrate an international reputation in the field, and petitioner should document the widespread use or application of the patent.
Q: How to meet the O-1 visa criterion of the alien's authorship of scholarly articles in the field, in professional journals or other major media?
A: This O-1 visa criterion refers to articles that the alien wrote concerning his or her work. The publications can range from major trade journals to mass media. Although the regulations refer specifically to "articles," other forms of publication such as visual media may fulfill this requirement.
It is preferable that the publications are in peer-reviewed academic journals, and those with international circulation. When submitting evidence under this category, the petitioner must demonstrate that the publication record rises above that of the average scholar. One method of doing so is to show that the alien beneficiary’s articles have been widely cited by independent researchers in the field.
Q: How to submit evidence to present a strong case that an alien applicant can be considered extraordinary?
A: According to USCIS, the following evidence may present a strong case that an alien applicant is considered extraordinary for an O-1 visa application:
1) peer-reviewed presentations at academic symposia;
2) peer-reviewed articles in journals;
3) testimony from other scholars on the alien beneficiary's contribution to the field;
4) a number of entries in a citation index citing the alien beneficiary's work as authoritative; or
5) participation by the alien beneficiary as a reviewer for a peer-reviewed scholarly journal.
Q: Due to the H-1B visa number limit, can I apply for O-1 visa to work in United States?
A: Many people may wonder whether they could qualify for the O-1 visa. The common misunderstanding could be that the O-1 visa application may be difficult to get approval. Therefore, many aliens with extraordinary ability may not normally apply for U.S. working visa in O-1 visa category.
Due to the yearly H-1B visa number limitation, the alien applicants from foreign countries need to wait for the H-1B visa quota for their H-1B visa application. Many new aliens are looking for other options. The O-1 visa is such a better option for those aliens with extraordinary ability who could qualify. Because these is no limit for O-1 visa number each year, and the O-1 visas are immediately available.
Q. I wan to apply for O-1 visa, how could you help my O-1 visa application?
A: The burden of O-1 visa petition approval rests with the petitioner. The petitioner should provide substantial evidence of at least 3 out of 8 O-1 visa criteria that the alien could satisfy. If the alien beneficiary is qualified, then the success depends largely on the way the application is presented to USCIS.
To help you apply for or renew your O-1 visa or status easily and quickly, we provide a high quality and case proved Complete Do-It-Yourself Package for O-1 Visa/Status Petition, based on our extensive and practical employment immigration experience.
As added value in the Complete Do-It-Yourself Package for O-1 Visa Petition, we provide comprehensive instructions on O-1 visa application requirements and processing, and we also let you know the step-by-step petition procedures, strategies, detailed instructions, all required documents, and how to submit a comprehensive O-1 petition to USCIS. We also provide detailed sample of petition cover letter, peer group advisory letter, recommendation letters, sample of filled petition forms, all the required USCIS forms, and the complete explanations of many petition related important issues.
New immigrants can benefit from our added value to make the complicated application process much simpler and easier, at the same time meet the U.S. Government's rigorous requirements. Therefore, our Complete Do-It-Yourself Package for O-1 Visa Petition is much more beneficial than the U.S. Government website's free service. If you apply for an O-1 visa by yourself, or if you have a lawyer working for you, you will find our package to be very helpful. With this package, you get all the information you need and the step-by-step knowledge of how to obtain your O-1 visa.
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 O-1 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 O-1 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 O-1 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 O-1 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 O-1 nonimmigrant visa to return for employment. According to USCIS, J1 nonimmigrant in valid status may:
(1) have an O-1 nonimmigrant visa petition approved on his or her behalf, and
(2) proceed abroad and apply for and receive from the State Department an O-1 visa, without first having to fulfill the two year foreign residence requirement or obtain a waiver thereof.
Q: How long can one maintain O-1 statusA: There is no maximum period for O-1 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 O-1 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 O-1 Visa?
A: An O-1 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 O-3 visa or status, in order to accompany the O-1 visa holder to the US. The O-3 visa status does not confer authorization for employment in the US. The spouse and children (under 21) of the O-1 visa holder will be eligible for derivative visas to accompany the employee on the U.S. assignment in the O-3 classification.
Q: What is the O-2 visa?
A: An O-2 visa can be obtained for those accompanying the O-1 visa holder who will assist the O-1 alien in their performance. To qualify for an O-2 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 O-1 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 O-1 and EB1-Extraordinary Ability?
A: The requirements for O-1 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 O-1 standards apply to those seeking a non-immigrant status, while the EB-1A standard is for those seeking permanent immigrant status
Q: As an employment related nonimmigrant status, what is the difference between O-1 and other employment related nonimmigrant status, like H-1B?
A: O-1 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 O-1 status. Moreover, the requirements of O-1 are much higher than that of H-1B. Also, O-1 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 O-1 visa?
A: Your prospective employer or agent must first get an approved O-1 petition from the USCIS. After that you may apply for an O-1 visa/status either in your home country or in US.
For our O-1 Visa DIY package, please see Complete Do-It-Yourself Package of O-1 Visa/Status PetitionQ: What should I prepare before I file my O-1 petition?
A: Usually, prior to your filing the O-1 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 O-1 status? What are the requirements for my application?
A: As an artist, in order to apply for O-1, 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 O-1. What are the requirements for the application of O-1 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 O-1 visa. What kind of visa I should apply?
A: You may apply for an O-2 visa. To qualify for O-2 status, you must be an "integral part" of the actual performance and have "critical skills and experience" with the O-1 alien which are not of a general nature, and which cannot be performed by U.S. workers.
Q: How can an alien change into O-1 status in the U.S.?
A: When the alien is already in the U.S., he or she can change other nonimmigrant status into O-1 status inside US, if he or she qualifies as an O-1 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 O-1 visa outside US after the O-1 petition is approved.
Q: Can I apply for O-1 visa by myself?
A: The O-1 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 O-1 petition. A United States employer, a United States agent, or a foreign employer through a United States agent may file an O-1 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 O-2 Visa?
A: To be eligible for an O-2 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 O-2 beneficiary is essential for the fulfillment of the O-1 visa holder's work.
Q: What is the duration of stay for O-2 Visa?
A: The initial stay is 3 years. The extension of stay is in increments of up to 1 year. An O-2 visa is valid till the time the O-1 visa holder accomplishes his/her task.
Q: How can I extend my stay with an O-2 visa?
A: Since you are accompanying the O-1 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 O-1 visa is employer specific, and O-2 visa holders act as support staff to the O-1 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 O-2 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 O-2 petition. More than one accompanying personnel may be included on a petition if they are assisting the same O-1 applicant for the same events or performances, during the same period of time and in the same location.
Q: What is O-3 Visa?
A: O-3 visas are issued to the immediate family members, spouse and unmarried minor children, of the O-1 and the O-2 visa holders. The initial stay is 3 years, and increments of up to 1 year. The O-3 visa is valid till the time the principal applicants accomplish the task.
Q: What is the extension of stay for O-3 Visa?
A: The dependents of O-1 or O-2 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 O-1 and O-2 visa is employer specific, and O-3 visa holders are the dependents, i.e. the spouse and unmarried minor children of the O-1 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 O-1 status if I meet the qualification requirements?
A: Yes, with your PhD degree, you may qualify to apply for O-1 status, when there is no H-1B number available and an U.S. employer wants to hire you. The O-1 status is distinguished from other employment related status in that it applies to more types of work than other areas. But the requirements of O-1 are much higher than that of H-1B. Also, O-1 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 O-1 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 O-1 visa, but you have to apply for an O-1 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 O-1 petition to the USCIS. Once the O-1 petition is approved, you need to apply for O-1 visa at a U.S. consulate abroad. After you obtain an O-1 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 O-1 visa, so I will not have H-1B visa 6 year limit problem.
A: O-1 visa is for someone who has "extraordinary ability" in his/her field of sciences, education, arts, athletes, and business. The O-1 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 O-1 visa. So you will not subject to the labor condition application unlike H-1B. More importantly, after changing to O-1 visa status, you do not have H-1B 6-year limit.
Q: What if the O-1 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 O-1 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 O-1 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: A company invited me to work on an ongoing research project in U.S. Now, I am considering the possibility to apply for O-1 Visa. How to understand the term "event" in the O-1 visa qualification criteria? and how to demonstrate the "extraordinary ability" in my O-1 visa application?
A: For qualification criteria of O-1 visa, the alien applicant should come to U.S. to work or perform at an event or a series of events in the area of extraordinary ability. The term “event" can be interpreted liberally not only in the fields of athletics or arts, but can also include an ongoing research project for a U.S. company.
To meet the O-1 visa requirement of extraordinary ability in science, education, business, or athletics, the applicant must be able to show extraordinary ability, and receipt of sustained national or international acclaim for it. This can be demonstrated if the person has accomplished at least three of the following:
received a nationally recognized prize or award for excellence;
attained membership in associations that require outstanding achievements of their members in a particular field of expertise, as judged by recognized national or international experts;
been the subject of published material in professional or major trade publications or major media (regarding you and your work);
participated, on a panel or individually, as a judge of the work of others in your field;
made an original scientific, scholarly, or business-related contribution of major significance to the field;
authored scholarly articles in professional journals or major media;
been previously employed in a critical or essential capacity for an organization with a distinguished reputation, or;
command or have commanded a high salary or other outstanding remuneration for your services.
If the above criteria do not readily apply to the applicant's occupation, the applicant can submit "comparable evidence" to show the “extraordinary ability”, and explain why the above criteria do not apply to the applicant.
Q: What is difference between O-1 visa and EB1-Extraordinary Ability application? and what is difference between O-1 and other employment related nonimmigrant status, such as H-1B?
A: The requirements for O-1 visa or status are similar to those for the EB1 Alien of Extraordinary Ability (EB-1A or EB1-EA), employment based permanent residence category. The difference is that the O-1 visa/status applies to those aliens seeking a non-immigrant status, while the EB-1A standard is for those seeking permanent immigrant status.
The O-1 visa/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 artists, athletes or entertainers without such educational background. However, such as artists, athletes or entertainers can apply for O-1 visa/status.
Moreover, the requirements of O-1 are much higher than that of H-1B. Also, O-1 visa/status could be obtained by those in H-1B status who have exhausted the full-authorized stay of 6 years.
Q: I want to file an O-1 visa application with the help of an U.S. employer. I am a visual artist. Do I need to get an "advisory opinion" to file an O-1 visa application? and how could I get the "advisory opinion"? Thank you.
A: To file an O-1 visa application, an Advisory Opinion should be be accompanied the O-1 visa application documents. The U.S. employer should consult with an appropriate peer group, labor organization, or management organization in the area of the alien's outstanding ability to get the advisory opinion for the alien beneficiary. Generally, a written advisory opinion should be obtained from the appropriate consulting entity with expertise in the alien beneficiary's field.
But an advisory opinion may not be required if the petitioner could prove that an appropriate consulting entity does not exist to provide Advisory Opinion. Also, if the petitioner is requesting expeditious handling of the O-1 visa application, an advisory opinion from an appropriate consulting entity may not be submitted with the application documents. The expeditious handling could be granted with regard to O-1 visa application on behalf of an alien who will be employed in the fields of art, entertainment, or athletics.
Q: I am in O-1 visa, and my friend with H-1B visa in another city has just had a "Site Visit" by USCIS. Why would the USCIS conduct a site visit? Is there anything I need to know or be careful for the possible site visit for my work place?
A: A special office of U.S. Citizenship and Immigration Services (USCIS), called the Office of Fraud Detection and National Security (FDNS) will conduct a site visit for companies with alien workers in H-1B, L-1, or O-1 status. There may be a few red flags to trigger the FDNS to have a site visit. For example, the alien workers may be placed at a location that is different from the U.S. employer’s actual work location. These practice and work location arrangements are often occur with alien workers in the Information Technology (IT) field.
Some U.S. service companies employ many alien workers as "consultant", and assign these consultants to work for their "end client" companies at the client's locations. Because these arrangements can be confusing for USCIS, the FDNS conducts the site visits to confirm that the worksite location explanation on the non-immigrant visa application Form I-129 for H-1B, L-1, or O-1 visa is correct, and that the U.S. service companies are truly the alien worker’s employer.
It is very importance to provide true and accurate information on all H-1B, L-1, or O-1 visa applications. The USCIS' Office of Fraud Detection and National Security is very likely to conduct a site visit if the U.S. employer has previously committed immigration visa fraud. If the FDNS finds the fraud, it will carefully review all subsequent immigration petitions filed by the U.S. employer.
Q: I am an well recognized Costume Designer, can I apply for O-1 visa as an alien of extraordinary ability in the arts? Thank you.
A: When applying for an O-1 visa as an alien of extraordinary ability in the arts, the alien applicants should make sure that their work fits the immigration law’s definition of art. The USCIS regulations define the art very broadly, which includes "any field of creative activity or endeavor such as fine arts, visual arts, culinary arts, and performing arts."
The alien applicants engaged in the field of arts include the principal creators and performers, and also essential persons such as directors, 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.
The O-1 visa applicants must come to the United States to perform in the area of extraordinary ability. They must be recognized as prominent in the field of endeavor. To demonstrate such recognition, the alien applicant need to supply documents showing that he / she has been recognized for the contribution in the field.
Q: Having an O-1 Visa, How Could I Qualify for EB1 Extraordinary Ability Green Card?
A: Many people who qualify for temporary O-1 visas as persons of extraordinary ability may not automatically qualify for the U.S. Permanent Resident in the EB1-Extraordinary Ability (EB-1A) Green Card category, even though the standards are close. It is therefore important to prepare an I-140 petition for a person of extraordinary ability according to the statutory and regulatory guidelines in order to avoid a Request for Evidence:
1) Ensure that all forms are completely filled out;
2) Clearly document in a letter from the petitioner, or from the alien if it is a self petition, how the alien applicant is qualified for this eminent category - EB1-Extraordinary Ability;
3) Ensure that the alien applicant meets at least three of the required criteria. Although meeting three of the ten criteria of EB-1A would not guarantee that the alien will qualify as an individual of extraordinary ability in the arts, sciences, education, business or athletics, if the alien applicant can not satisfy at least three of the EB-1A criteria, it may be wise to consider another green card application category.
Q: As an excellent athlete in basketball, how could I apply for a visa for professional sports in United States?
A: The athletes coming to the U.S. may qualify for O-1 visa or P-1 visa application. The O-1 visa category is limited to individual athlete, and is subject to high eligibility standard. The athlete must demonstrate extraordinary ability in the field, and intend to continue to work in the same area in the United States. When considering the O-1 visa application option for athletes, it is important to consider both the athlete's past accomplishments and the proposed activity in U.S.
For example, if an athlete has achieved extraordinary ability before as a basketball player but he can no longer compete in the field, then he may not necessarily be eligible for the O-1 classification as a basketball coach. Because a person who possesses or previously possessed extraordinary athletic ability, and wishes to enter the U.S. as an O-1 to coach will need to demonstrate a record of extraordinary ability as a coach.
An alternative option to the O-1 visa classification for athletes is the P-1 visa, which is generally easier to obtain than the O-1 visa. The level of achievement required for P-1 visa classification is that of "renowned, leading, or well-known in more than one country," which is somewhat lower than the extraordinary ability required for O-1 visa. Also, the P-1 visa category can be used for both individual athletes and athletic teams, and can be used for participants in both professional and amateur sports.
Q: I am in United States in O-1 visa now for more than one year. Is the O-1 visa a "dual intent" visa like H-1B visa or L-1 visa? or can I apply for U.S. Green Card to become a permanent resident of the United States with O-1 status?
A: The "dual intent" appears to be recognized by USCIS for O-1 extraordinary ability visa holders. While not statutorily recognized as "dual intent" visa like the H-1B visa and L1 visa, the O-1 visa applicants are not required to maintain a residence in the applicant's home country. The U.S. immigration regulations provide that the approval of a permanent Labor Certification or the filing of a immigrant preference visa petition should not be a basis for denying an O-1 visa application, or the extension of stay for O-1 visa holders.
However, the "dual intent" provision does not apply to O-2 visa applicants. Unlike the O-1 extraordinary ability nonimmigrant visa, the O-2 visa applicants must satisfy that he or she has a residence abroad, and no intent to abandon that residence in their home country.
While an O-1 visa applicant does not have to have a residence in the home country which he or she does not intend to abandon, there must however be an intent to remain on the O-1 visa. Therefore, the foreign national may legally come to U.S. in O-1 visa, and depart U.S. at the end of the authorized stay, and at the same time, seek to apply for U.S. Green Card to become a permanent resident of the United States.
Q: I filed an O-1 petitiion one month ago, soon I received the Request For Evidence from USCIS. The major RFE request is to prove my extraordinary ability in science. How could I meet the "extraordinary ability" atandard for O-1 visa application?
A: In science, education, business, and athletics, the extraordinary ability means “one of the small percentage who have arisen to the very top of the field of endeavor." Foreign nationals working in motion pictures and television must show "a degree of skill and recognition significantly above that ordinarily encountered," a standard that falls somewhere in the middle. The definition at the lowest level says "extraordinary ability in the arts means distinction."
The accomplishments of all types of O-1 beneficiaries must be "recognized in the field through extensive documentation." The subjective nature of standards renders them vulnerable to vague and ill-considered RFEs, NOIDs and unjustified denials. Insufficient training, varied aptitudes of adjudicators, and the absence of consistent guidance from headquarters and oversight by seasoned supervisors contribute to the problem, which starts with an absence of training on the different O-1 standards.
If you get a Request For Evidence (RFE) notice for your O-1 visa application or extension from an USCIS Service Center, it is necessary that you must work hard to provide requested evidence in a short time, and persuade the USCIS adjudicators to approve your case. It is critical to appropriately and proficiently reply the Request For Evidence. Incorrect response of the RFE will directly result in your O-1 visa application or extension rejection.
To help you replying the RFE, we provide the high quality and case-proven Complete Do-It-Yourself Package of Request For Evidence for O-1A / O-1B Visa Application or Extension. In the RFE package, we present methods of analyzing RFE questions, RFE replying strategies, means of strengthening your case, detailed RFE cases analysis, sample cover letters, and more. With the RFE package, you get all the information you need and step-by-step knowledge and strategies of how to prepare an efficient, professional, and complete response to your RFE notice of O-1 visa application or extension, and eventually get your O-1 visa approval.
Q: My employer is now considering to apply O-1 visa or H-1B visa for me, because the less H-1B visa quota each year. What are the major advantages of O-1 visa over H-1B visa? Can my wife work in U.S. legally if I am in the O-1 status?
A: The O-1 visa and H-1B visa have some common requirements and characteristics. The H-1B visa allows the alien professionals in specialty occupations to work for a U.S. employer within 6 year limit. H-1B visa holders often work in fields including engineering, mathematics, science, biotechnology, and businesses.
The O-1 visa is a working visa for aliens of extraordinary ability in the sciences, arts, business or athletics. The extraordinary ability can be proved with the evidence such as scholarly publications or proof of high salary that they are at the top of their respective field. An alien applicant seeking an H-1B visa may also be able to qualify for an O-1 visa, if they can provide the necessary documentation of their extraordinary ability.
For the advantage of O-1 visa, there is no annual cap on the number of O-1 visa petitions the USCIS can approve each year, and there is no maximum number of years one can stay in O-1 status. Unlike H-1B, an O-1 visa petition does not require the Labor Condition Application (LCA) to be filed with the U.S. Department of Labor (DOL).
However, an O-1 filing requires that aliens with extraordinary ability in arts to obtain an advisory opinion from a relevant peer group, which may sometimes be difficult to identify. Also, both H-1B and O-1 require an offer of employment, and O-3 visa dependents are not allowed to work in the U.S.Q: I am from a visa retrogressed country with EB2 National Interest Waiver (EB2 NIW) pending. I am planning to apply for EB1-Outstanding Researcher or Professor (EB-1B) through employer, which is a small state college. The question is my employer willing to sign the Form I-140 petition but stating I am a full time researcher with employment at will. Is it necessary to state I have a "permanent position" for EB1 Outstanding Researcher or Professor petition?
A: According to USCIS, the “good cause for termination” clause has been an important issue when adjudicating EB1-Outstanding Researcher or Professor petitions. This clause should be included in employment offers to ensure that the job is not “at will” employment.
However, USCIS also indicated that EB1-Outstanding Researcher or Professor petitions should not be denied simply because the offer of employment is lacking a “good cause for termination” clause. Therefore, the employment "at will" is also accepted by USCIS for EB1-Outstanding Researcher or Professor petitions, since USCIS considers it is a common business practice to have such clause in the job offer letters.
If the employment "at will" cause is in your job offer, then in the EB-1B petition, your employer needs to demonstrate that your research position will have “an expectation of continued employment.”
Q: I am a renowned artist working in the field of fine art. Do I qualify for the O-1 Visa? and do I need a "consultation letter" for my O-1 visa application?
A: To qualify for an O-1 visa, the alien beneficiary must demonstrate extraordinary ability by sustained national or international acclaim, and must be coming to U.S. to continue work in the area of extraordinary ability. Extraordinary ability in the fields of science, education, business or athletics 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.
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 ordinarily encountered 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 evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable or leading in the motion picture and/or television field.
The petitioner should file Form I-129, Petition for Nonimmigrant Worker, with the USCIS office listed on the form instructions. The consultation letter is required for an O-1 visa petition. A written advisory opinion is required from a peer group, including labor organizations, or a person designated by the group with expertise in the alien beneficiary’s area of ability.
If the O-1 petition is for an individual with extraordinary achievement in motion picture or television, the consultation letter must come from an appropriate labor union and a management organization with expertise in the beneficiary’s area of ability.
Q: As a research associate with Master degree in a private company, I could not get H-1B visa due to the visa quota. Can I apply for O-1 visa? and what are the qualification requirements?
A: The O-1 visa is available to an alien applicant who has a job offer in the United States, with proven extraordinary ability in the sciences, arts, education, business, or athletics. The O-1 visa applicant should have received national or international acclaim in a particular field, or if working in motion pictures or television productions, have a demonstrated record of extraordinary achievement.
O-1 visas can be given only on the basis of an alien applicant's individual qualifications. Being a members of a group or team will not, by itself, qualify the alien applicant for an O-1 visa. Also, the alien applicant should come to the United States working or performing at an event or a series of events in the area of extraordinary ability. The term "event" is interpreted liberally outside the fields of athletics and arts, and it can include an ongoing research project for a private company or university.
A job offer from a U.S. employer is a basic requirement for the O-1 visa applicant. There is no annual visa limit on the number of alien applicants who can receive the O-1 visas. Some of the advantages and disadvantages of the O-1 visa include:
1) The O-1 visas can be issued quickly by USCIS. The O-1 visa holder can work legally in the United States for the O-1 visa employer. If the O-1 worker wants to change jobs, a new visa application is required.
2) The O-1 visas will be issued for the length of time necessary for a particular event in the United States, up to a maximum of 3 years, with unlimited extensions in 1-year increments.
3) The O-1 visa holder and the family members can travel in and out of the United States, or stay continuously in the United States for as long as the O-1 status are valid.
4) The O-1 visa holder's spouse and unmarried children under age 21 can accompany the O-1 visa holder, but they could not accept employment with the O-2 visa in the United States.
Q: I have a U.S. agent to file O1 visa for me, and the agent will perform the function of an employer. What evidence is required with a petition filed by a U.S. agent? How does an agent establish to USCIS that it is an agent performing the function of an employer?
A: The O1 visa regulations allow agents to be O1 visa petitioners in the following scenarios: 1) a U.S. agent can file for traditionally self-employed workers, or workers who use agents to arrange short-term employment with numerous employers, or 2) a foreign employer who authorizes an agent to act on his or her behalf.
A U. S. agent may be the actual employer of the beneficiary; or the representative of both the employer and the beneficiary; or a person or entity authorized by the employer to act in place of the employer as its agent.
The evidence required for O1 visa application depends on whether the agent is filing as an agent performing the function of an employer; or as a person or company in business as an agent and filing for multiple employers; or as an agent for a foreign employer.
When an agent performing the function of an employer petitions for the beneficiary, the petition must include the contractual agreement between the agent and the beneficiary which specifies the wage offered and other terms and conditions of employment. This can be a summary of the terms of the oral agreement or a written contract. USCIS relies on the contractual agreement that must be provided with the petition to determine whether the agent is functioning as the employer of the beneficiary.
The contractual agreement should establish the type of working relationship between the agent and beneficiary and should clearly lay out how the beneficiary will be paid. If the terms and conditions of employment show a level of control over the beneficiary’s work being relinquished to the agent, then the agent may establish that it is performing the function of an employer. This determination will be on a case by case basis and will be based on the contractual agreement, whether written or oral.
Q: Can a partially or fully self-incorporated person applies for O-1 visa for himself or herself? Also, can a foreign employer be a corporation owned by the O-1 visa beneficiary?
A: The U.S. immigration regulations require that an O-1 visa application should be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent. The regulations also indicate that an O-1 visa cannot be files by alien himself or herself.
The regulations require that an O-1 visa petition should be filed by an U.S. employer or agent. Documentation of ownership and control of the business may be requested to verify that the petitioning entity is a real U.S. employer. The O-1 visa petition should not be based on speculative employment, and the terms and conditions of actual employment are required for O-1 visa application.
For O-1 visa application, a foreign employer can be a corporation owned by the O-1 visa beneficiary, but the O-1 petition must be filed by a U.S. agent. A foreign employer may be a corporation owned wholly or in part by the O-1 visa beneficiary, but the foreign employer must utilize a U.S. agent to file the O-1 visa petition. USCIS may request information regarding the foreign employer and documentation to establish that there is work in place for the O-1 beneficiary in U.S.
Q: Can I Apply for Premium Processing of O1 Visa?
A: You cannot apply for the O1 visa as an individual. A U.S. employer has to sponsor your O1 visa. To sponsor you, the U.S. employer must file Form I-129, Petition for a Nonimmigrant Worker, with the Form I-129 O/P supplement, and supporting documentation.
The petition is submitted to the U.S. Citizenship and Immigration Services (USCIS) Service center with jurisdiction over the location of the job. Once the USCIS approves of the O1 visa petition, you may apply for the O1 visa at an American Consulate overseas.
For premium processing of O1 visa application, the O1 petition can be adjudicated within 15 calendar days by applying for premium processing. For an additional fee, the USCIS guarantees a prompt decision on your O1 petition. You will receive either an approval notice, a request for further evidence, or a notice of intent to deny the petition ithin 15 calendar days from the date you applied for premium processing of your O1 visa. If USCIS fails to respond within 15 calendar days, it will refund the fee and continue to process the petition under the expedited process.
An O1 petition is filed on USCIS Form I-129, along with the I-129 O/P Supplement. Your O1 petition must include a written consultation with a peer group in your area of ability, and a copy of any written contract between you and your employer, or summary of terms of the oral agreement under which you will be employed.
Q: I am a researcher with O-1 visa, Can I apply for immigration in the category of Extraordinary Ability (EB-1A) without jeopardize my current O-1 status?
A: O-1 is a non-immigrant visa category for aliens of extraordinary ability in the sciences, art, education, business, or athletics. This is an employment related visa that allows aliens to live and work in U.S. With an O-1 visa, an alien can have “dual intent.” The "dual intent” arises when a foreigner intends to immigrate to the United States at some time, while maintaining a non-immigrant status. Many nonimmigrant status require that an alien maintains a nonimmigrant intent.
With "dual intent”, an approved labor certification or a filed immigrant petition will not jeopardize a person's O-1 status or ability to obtain an O-1 visa. It will also not jeopardize one’s ability to extend their O-1 status. Also, an alien under O-1 status does not have to have a foreign residence which he or she has no intention of abandoning.
For example, under an O-1 visa, an alien applicant can stay and work in United States even though he is filing an immigration petition. Also, the O-1 status will not be jeopardized even by demonstrated intent to immigrate. In fact, he can apply for immigration as soon as he wants to after receiving her O-1 visa, because unlike holders of B, F-1 or TN status, applying for immigration even less than 60 days after arriving in the U.S. would not represent fraudulent intent to obtain a visa or entry into the U.S. if the alien holds O-1 status. Rather, He can apply for immigration while under O-1 status without any negative consequences, and he can continue working legally under her O-1 visa while he waits for approval of his EB-1A immigration application.
Q: Can I Change to Other Visa Type After Being Laid Off?
A： Similar to H-1B visa holders, the L1 visa and O1 visa holders are no longer considered to be maintaining valid status as of the day the employment has been terminated. The U.S. immigration regulations do not provide a grace period for H, L, O, and P nonimmigrants whose employment has been terminated, thus once the nonimmigrant visa holder is no longer in a lawful nonimmigrant status, he or she usually should depart from the U.S.
Depending on each person's circumstances, the nonimmigrant visa holder may be eligible to remain in U.S. due to a request for a change of status, such as Form I-485 application or change to other visa, that is filed while the alien is maintaining status.
In deciding whether to approve a change or extension of status for any nonimmigrant who has fallen out of status, USCIS may exercise discretion on a case-by-case basis to grant the extension or change status, despite the failure to maintain status.
Q: Can I Change My Nonimmigrant Status to O-1 After Green Card Application?
A: The H-1B status can apply for change of status to an O-1 visa, without any risk of denial based on the demonstrated intent to immigrate, since both O-1and H-1B visas allow for dual intent on the part of alien applicants.
The H-1B visa and L-1 visas allow dual intent, although for a set maximum duration. The usual duration of an H-1B worker’s stay in the U.S. is limited to six years, while an L-1A visa is initially granted for a period of one to three years, and can be extended in two-year increments until the total stay reaches seven years.
In contrast, there is no maximum period for O-1 status, it can theoretically be indefinite. For O-1 visas the length of the status is determined by the length of time needed for the alien to perform his duties or activities with the petitioner employer, but the period of stay may be extended indefinitely if the necessary qualifications can be met. Thus, O-1 status can present a viable way to maintain stable legal status in the U.S. and continue working, while waiting for the outcome of an immigration petition.
Q: As a musician, can I enter the United States with B-1 or B-2 visa to record DVD in a studio, which will be sold in U.S. and over the world?
A: Under the USCIS regulation, one of the key issues is whether the musician or performing artist will be paid for his or her services in the United States. An B visa nonimmigrant may not receive a salary from a U.S. source for services rendered in connection with the activities in the United States. However, a U.S. source may provide an expense allowance or reimbursement for expenses incidental to the temporary stay.
If the artist will not be paid for an event or service, but the event for the musician or artist will charge an admission
fee or request a donation to attend the event, the general rule is that the alien artist should apply for a P visa or an O-1 to perform in the United States.
The recording in a studio is generally considered a performance, the results of which would likely be an album, CD or other salable media, from which the performer will receive income such as royalties. Thus, the alien artist should apply for a P visa or an O-1 also to record in the United States.
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Q: Can I start my own business and petition for an O-1 Visa?
A: The USCIS regulations require that an O-1 Visa petition be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent. The regulations also state that an O-1 alien may not petition for himself or herself.
The Immigration and Nationality Act requires that an O-1 petition be filed by an importing employer or agent. The documentation of ownership and control of the business may be requested to verify that the petitioning entity is a real employer in the United States, and the petition is not based on speculative employment. The terms and conditions of actual employment should qualify for O-1 visa.
In most cases O-1 visas are filed by an employer, as federal regulations do not allow for O aliens to petition for themselves. However, the U.S. Department of State’s Foreign Affairs Manual (FAM) was amended in September 2016 to allow for a legal entity owned by an alien to file an O-1 petition on his/her behalf. This amended FAM guidance opens new doors for O-1 visa applicants, who may use legal entities that they own as their agent petitioners, as long as they can satisfy the fundamental requirements of the O-1.
In short, the FAM guidance specifically allows an O-1 visa applicant to “self-petition” visa an entity wholly owned by him or her for work to be performed in the U.S. for other employers, then take on any additional O-1 caliber engagements in the U.S.
Q: I am in O-1 status now, and plan to submit EB1 Extraordinary Ability application. Will it jeopardize my ability to request to extend my O-1 status in the future?
A: O-1 is a non-immigrant visa category for aliens of extraordinary ability in the sciences, arts, education, business, or athletics. This employment related visa allows qualified aliens to live and work in the United States. Significantly, under O-1 status, a foreign national can have “dual intent,” an intention which renders certain other types of non-immigrant status invalid.
“Dual intent” arises when a foreign national intends to immigrate to the US at some point, while presently maintaining non-immigrant status. Many types of legal nonimmigrant status require that the alien seeking and maintaining such classification have nonimmigrant intent, rather than immigrant intent. In other words, such aliens may not intend to remain permanently in the U.S. without jeopardizing their nonimmigrant status.
However, aliens under O-1 status are not subject to this requirement. Rather, they can legally maintain “dual intent.”Thus, an approved labor certification or a filed immigrant petition will not jeopardize one's O-1 status or ability to obtain an O-1 visa. It will also not jeopardize one’s ability to request to extend their O-1 status. Further, according to the Immigration and Nationality Act, an alien under O-1 status does not have to have a foreign residence which he or she has no intention of abandoning.
Q: How should an O-1 application establish a foreign national's accomplishments in motion picture or television industry?
A: For O-1 application in motion picture or television industry, an applicant should have a demonstrated record of extraordinary achievement in motion picture and/or television productions, and the alien is coming temporarily to the United States to continue work in the area of extraordinary achievement.
To qualify as a person of O-1 extraordinary achievement in the motion picture or television industry, it must be shown that the foreign national has a very high level of accomplishment in the motion picture or television industry 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 motion picture or television field.
The types of documentation that may be submitted to establish that the foreign national is a person of extraordinary achievement in the motion picture or television industry are the same as the evidence required to establish that a foreign national is a person of extraordinary ability in the arts.
Q: Can I change from J-1 status to O-1 visa, if I am subject to the two-year residency requirement? Do I need to get the J1 waiver first?
A: Some J-1 exchange visitors are subject to a two-year home-country physical presence requirement, which requires them to leave the U.S. for their home country on or before the expiration of their I-94. If you are in this category and would like to change your status without fulfilling the two-year exercise, you may be able to file for a J1 waiver.
You will need to get a J1 waiver approval from USCIS before you can be eligible to apply for a change of status to O-1 visa. There are five bases upon which a J1 waiver can be granted; you must meet the eligibility requirements of at least one of the five categories and then apply in accordance with the provision under that category. The five bases are:
1) No Objection Statement: You will need to request for a No Objection Statement from your home country government. Having this means your government has no objection to your intention to change status, and will automatically exempt you from the mandatory physical residency.
2) Request by a U.S. Federal Government Agency: You may request for a waiver under this category if your J-1 program is of interest to a U.S. federal government agency and your departure might be detrimental to that agency. In this case, you will need the head of the agency to sign your request and submit it to the Waiver Review Division.
3) Fear of Persecution: You may request for a waiver under this basis if you believe your returning to your home country will expose you to persecution based on your religion, race or political views. To do this, you will need to submit an I-612 to the USCIS.
4) Exceptional Hardship: If you can prove that your two-year departure would cause severe hardship to your U.S. citizen or permanent resident child or spouse, you may request for a waiver under this basis also by submitting av I-612 to the USCIS.
5) Request by a State Public Health Department: If you are a medical graduate and there is a full-time job offer for you in a state public healthcare facility or its equivalent, you may file for a waiver under this basis. The department must send a waiver request on your behalf to the Waiver Review Division.
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