1.
The Overview of O1 Visa
O1 visa/status is designed for aliens of extraordinary ability or achievement in
the sciences, education, business,
athletics, and arts. "Extraordinary ability" means that the individual is one of the small percentage who
has risen to the very top of their field of endeavor.
The
O1 visa/status is similar to the "Extraordinary Ability" EB-1 green card category, in that it is meant for only those
who have risen to the very top of their field. Unlike the extraordinary ability green card category, an
O1 visa or status cannot be processed as a "self-petition." Rather, an employer must file the
petition for the beneficiary.
O1 visa or status is valid for up to 3 years, with 1 year incremental extensions.
The total time allowed in this status is determined by the "duration of the event" for which the visa status is granted. Thus, there is no limit on the time an
O1 holder staying in the U.S.
O1
visa or status could be obtained by those in H-1B status who have exhausted the full authorized
stay of 6-years. Also, the benefit of the O1 visa over the J1 visa is that individuals currently on
J1 visas can transfer to the O1 category without having completed the 2 year home residency requirement or having received the waiver of the 2 year home residency requirement. Such
J1 individuals will be required to travel abroad to apply for the O1 visa after approval of the
O1 petition.
O1
extensions may be authorized for periods of up to one year to continue or complete the event for which the
O1 holder was admitted into the United States.
Although the processing time for an
O1 visa/status is somewhat less than the processing time for an
H-1B, two to four months lead time should still be given to allow sufficient time to obtain the necessary supporting documentation and to complete the application process.
Once the determination is made that the alien qualifies under the regulatory definition of "outstanding", supporting documentation is assembled. In addition, an advisory opinion from a "peer group" must be obtained.
The
USCIS Form for petitioning of an O visa is the Form I-129 "Petition for temporary worker". This
form must be submitted along with the consultation opinion letter, evidence documenting the alien's extraordinary ability, and details of the proposed work in the US. The petition is to be approved for the duration of the event in which the alien will participate, for a maximum of three
years initially.
2.
The Requirement
of Advisory Opinion
Aside from meeting the evidence tests, a key requirement for O1 applicants is consulting with an appropriate peer group, labor and/or management organization regarding the type of work to be performed and the qualifications of the proposed beneficiary. The "peer group", an organization of person in the same field as the beneficiary, must normally provide a written opinion to USCIS, but the opinion is not binding.
The O1 petition must be accompanied by a consultation letter from a recognized peer group such as a professional society stating that they have no objection to the beneficiary obtaining an
O1 visa to work in the United States.
For all O1 and O2 applicants, the petition must include an advisory opinion from a peer group, labor union, or person with expertise in the applicant’s field. This opinion can either state simply that the group has no objection to issuing the visa, or can detail the applicant’s achievements. If the achievements are detailed, the letter should also address the applicant’s ability, the nature of the position offered, and whether the position requires a person of extraordinary ability.
A written consultation/advisory opinion can be from a peer group or recognized expert, in the field
of individual's area of ability. An example might be a
letters of support from a renowned researchers, as evidenced by detailed curriculum vitae and publication
list, which attests the qualifications and work to be done by the
O1 beneficiary.
For applicants in the television and motion picture industries, there must be a consultation with both the appropriate labor union and management organization. This opinion must state the applicant’s achievements in the field, and must state whether the position offered requires a person of extraordinary achievement.
3.
O2 and O3
Visa
The spouse and unmarried children of an O1 alien may hold
O3 status as dependents of the principal alien. This status allows the O3 alien to reside in the United States, but not to work.
The O3 nonimmigrant classification also includes the spouse and children of an
O2 nonimmigrant.
The O2 nonimmigrant category extends to aliens coming to the United States solely to accompany or assist an
O1 performer or athlete. To qualify for O2 status, the alien 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 cannot be performed by U.S. workers.
The O2 visa is restricted to foreign nationals seeking to accompany
O1 employees in the arts, motion picture and television productions, and athletics.
O2 foreign nationals cannot work separate and apart from the O1 prospective employee,
and must be named in the
O1 petition. Individuals seeking admission to accompany an O1 employee must meet the following criteria:
(1) they must enter the U.S. for the purpose of assisting in the
O1 alien's performance;
(2) they must be an integral part of the actual performance;
(3) they must have critical skills and experience with the
O1 employee, which are not of a general nature and are not possessed by a U.S. worker; and
(4) they must have a foreign residence that they do not intend to abandon.
To support classification of
O2 and O3 accompanying aliens, the O1 alien must be coming to the United States to work in his or her area of extraordinary ability or achievement.
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