The O visa is intended for foreign nationals who possess extraordinary ability in the arts, sciences, education, business, or athletics. In order to qualify for this category, the foreign national must have demonstrable national and/or international recognition and acclaim. Foreign nationals cannot self-petition for the O-1. Instead, they must either have the prospective U.S. employer (or multiple U.S. employers) or an established agent file the petition on their behalf. The foreign national must also enter the U.S. to work in the field in which he or she has received that acclaim.
Compared to other visa categories, the O-1 has some significant advantages. There are no lottery restrictions and prevailing wage requirements as there are for H-1B applicants. The period of stay is tied to the time necessary to provide for the event or activity for which the nonimmigrant is admitted, up to an initial three-year period. O-1 visas may be renewed for one-year increments, and there is no limit to the number of renewals, until the project/activity is finished.
What are the different types of O-1 visas?
- O-1A visas are for foreign nationals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures, or television industry)
- O-1B visas are for foreign nationals with an extraordinary ability in the arts or extraordinary achievement in motion pictures or the television industry.
- O-2 visas are for foreign nationals who will accompany an O-1 artist or athletes to assist in a specific event or performance; and
- O-3 visas are individuals who are the spouse or children of O-1 and O-2 visa holders.
How is ‘extraordinary ability defined?
Generally speaking, the foreign national has to have “sustained national or international acclaim” and must have risen to the top of his or her field. For O-1 applicants in the arts, the foreign national must demonstrate “distinction,” which is defined as a high level of achievement as evidenced by a degree of skill and recognition substantially above that ordinarily encountered.
How can national or international acclaim be established?
National or international acclaim can be demonstrated by receipt of a major internationally recognized award, or if the foreign national meets three of the following criteria:
- Receipt of nationally/internationally recognized prizes or awards for excellence in the field;
- Membership in associations in the field that require outstanding achievement of their members, as judged by recognized national or international experts;
- Published material in professional or major trade publications or major media about the foreign national;
- Participation on a panel or as a judge of the work of others in the same or an allied field of specialization;
- Original scientific, scholarly, or business-related contributions of major significance;
- Authorship of scholarly articles in professional journals or other major media;
- Current or previous employment in a critical or essentially capacity for organizations or establishments that have a distinguished reputation; or
- Past or proffered high salary or other remuneration for services, evidenced by contracts or other reliable evidence.
What is an established agent?
An established agent may be the foreign national’s actual employer, the representative of both the foreign national and the employer, or persons authorized by foreign employers to file an O-1 petition (Form I-129) and to accept service of process.
O Visa Challenges
Applicants must obtain a written advisory opinion from a peer group, labor organization, or management organization in their field of expertise. If no such organizations exist, the foreign national must obtain an independent advisory opinion from an expert in the field of expertise.
O-1 visas are technically not dual intent visas like the H-1B. Nevertheless, there is no foreign resident requirement for the O-1, and the filing of an immigrant preference petition is not a basis for denying O status to the foreign national. If the foreign national files an Adjustment of Status (AOS) while in the U.S. in O-1 status, however, he or she should not travel internationally but instead wait until they have received Advanced Parole.
Demonstrating extraordinary achievement
While the foreign national may possess achievements and meet other basic requirements, it is often challenging to demonstrate that he or she has risen to the top of the field of expertise. The key is documented evidence. For example, a successful O-1 applicant in the sciences, education, or business will have published studies, articles, books, etc., in their field of expertise, and they will have been cited on numerous occasions in other works within the same field. Typically, they will have been invited to speak on more than one occasion at industry related conferences and events. Documentary proof of this is essential to the success of an O-1 petition.