The O-1 visa category is available to highly talented or acclaimed foreign nationals who can demonstrate an “extraordinary ability” in the sciences, arts, education, business, or athletics, or “extraordinary achievement” in the motion picture or television industry. There are two subcategories of O-1 visas, the O-1A category and the O-1B category. O-1A visas are used by foreign nationals in the the sciences, education, business, or athletics. O-1B visas are used by foreign nationals in the motion picture or television industry. A separate visa, the O-2 visa, is available for certain foreign nationals who will assist an O-1, using critical skills or experience not of a general nature.
In order for a foreign national to obtain O-1 status, the individual must be sponsored by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent. The O-1 sponsorship process involves the filing of a petition by the employer or agent. An O-1 visa candidate must be coming to the U.S. to work in his or her area of extraordinary ability or achievement. The petition includes extensive documentation to demonstrate that the O-1 candidate is recognized in his or her particular field. In addition, an O-1 petition must generally include an advisory opinion from the appropriate labor union or peer group, evidence of upcoming work/engagements in the U.S. and documentation to establish the employer or agent meets the criteria for an employer or agent.
There are three different evidentiary standards applicable to the O-1 category. O-1A candidates in the sciences, education, business, or athletics are subject to the highest standard, requiring expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor. A much lower standard applies to O-1A candidates in the arts, which includes a diverse range of occupations in areas such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts. They are required to demonstrate a degree of skill and recognition substantially above that ordinarily encountered. The standard for O-1B candidates in the motion picture or television industry falls in the middle of the spectrum.
To satisfy the highest standard of proof, petitions for O-1A candidates must include: (1) evidence of a one-time achievement of a major, internationally recognized award such as the Nobel Prize; or, (2) evidence of at least three of the following:
Petitions for O-1B candidates in the motion picture or television industry must document the candidate’s extraordinary achievement in motion picture or television productions. Like the O-1A visa category, evidence of a one-time, major award such as an Academy Award or an Emmy or its equivalent, will satisfy standard for O-1B visas. In the alternative, an O-1B candidate must demonstrate three of the following:
The criteria for petitions for O-1A candidates in the arts are the same as the criteria for O-1B candidates. However, USCIS will weigh the evidence differently under the lower standard, requiring a degree of skill and recognition substantially above that ordinarily encountered.
The USCIS filing fee for an O petition is $325. Premium processing service is available for an additional $1,225 filing fee and guarantees a 15 calendar day processing of the petition. Within 15 calendar days, USCIS will issue an approval notice, or if appropriate, a Request for Evidence. A request for premium processing service can be made either at the time of the initial filing or after the petition has been filed. O-1 and O-2 petitions may be approved for a period of up to 3 years and extended in annual increments for an indefinite period of time.
O-1 and O-2 employment is tied to the petitioning employer. In order for an O-1 or O-2 candidate to work for a new employer, the new employer must first file a petition with the filing fees applicable to new petitions. There are special rules for O-1 athletes which permit employment authorization for thirty days in instances where an athlete is traded from one team to another. Within the thirty day period, the O-1 athlete’s new employer is required to file an O-1 petition.
The spouses and children of O visa holders are eligible for a dependent visa, the O-3 visa. To obtain O-3 status, the dependent must either file an application with USCIS or apply for a visa at a U.S. embassy or consulate overseas. O-3 visa holders are not permitted to work, but they may attend school.
For highly talented or acclaimed foreign nationals, the O-1 visa may be an attractive option over other visa categories such as H-1B, TN and L visas. The standard of proof is similar to the standard which is required for employment-based first preference petitions. Therefore, much of the same evidence used to support an O-1 petition can be reused in an employment-based first preference petition.
Also, a foreign national who holds or previously held J-1 status and is subject to the two-year foreign residence requirement does not need a waiver to hold O status.