The O-1 visa is a temporary work visa available to those foreign nationals who have "extraordinary ability in the sciences, arts, education, business or athletics" which "have been demonstrated by sustained national or international acclaim." It is also available to those in 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. For example, chefs, carpenters and lecturers can all obtain O-1 visas. The person entering the U.S. must be coming to work in their field of ability, but the position need not require the services of a person of extraordinary ability.
To obtain an O-1 visa to work in the sciences, education, business or athletics, applicants must demonstrate that they possess "a level of expertise indicating that the person is one of the small percentage who have risen to the top of the field of endeavor."
There are two ways to demonstrating this expertise. One method is through receiving a major internationally recognized award such as a Nobel Prize. The more common way is by providing documentation in three of the following categories:
- Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor
- Membership in associations in the field which require outstanding achievements of their members
- Published material about the foreigner
- Participation as a judge of the work of others in the same or allied fields
- Evidence of original contributions of significance in the field
- Authorship of scholarly articles
- Evidence of employment in a critical or essential capacity for organizations with a distinguished reputation
- Evidence that the foreigner has or will command a high salary
Comparable evidence that does not fit within these categories may also be submitted in support of an O-1 visa petition.
Extraordinary ability in the arts means that the applicant has attained "distinction." Distinction is defined as "a high level of achievement in the field of arts evidence by a degree of skill and recognition substantially above that ordinarily encountered." Distinction has also been defined as prominence in the field of endeavor.
The applicant can demonstrate distinction by being the nominee or recipient of an important national or international prize such as an Academy Award, Emmy or Grammy, or by submitting documentation in at least three of the following categories:
- Evidence that the foreigner has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity released, publications contracts or endorsements
- Evidence that the foreigner has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines or other publications
- Evidence that the foreigner has performed, and will perform, in a lead, starring or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications or testimonials
- Evidence that the foreigner has a record or major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers or other publications
- Evidence that the foreigner has received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the foreigner is engaged. Such testimonials must be in a form which clearly indicates the author's authority, expertise and knowledge of the foreigner's achievements or
- Evidence that the foreigner has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidence by contracts or other reliable evidence.
Comparable evidence may also be submitted to meet this requirement.
Extraordinary achievement in television or motion pictures
The same criteria are used to determine extraordinary achievement as are used in determining distinction in the arts. However, the evidence is weighed differently and the applicant does not have to meet as high a standard.
An O-2 visa can be obtained for those accompanying the O-1 visa holder. 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 visa holder.
Evidence must be submitted to establish the applicant's essential role, and that they have skills and experience not possessed by an immediately available U.S. worker. Before a person will be granted either an O-1 or O-2 visa, USCIS requires a consultation with a U.S.-based organization. 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. For all other O-1 and O-2 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.
Advisory opinions for O-2 applicants should outline the essential role to be played by the support personnel, as well as their relationship to the O-1 visa holder. It should also state whether there are available U.S. workers. If the consultation is with an organization other than a labor union, the USCIS will forward the application to the union it deems appropriate within five days of receiving the petition. The union must issue an opinion on the petition within 15 days, and then the USCIS has two weeks to rule on the application. If an O-1 applicant in the extraordinary ability in the arts category has obtained a consultation within the past two years, he or she need not obtain a new one. Nor is a new consultation required when seeking an extension of any O visa.
A foreign national cannot apply for an O visa in his or her own name. U.S. agents, managers, concert venues and others can sponsor the O-1 petition when there is no appropriate employer. This is often done when the foreign beneficiary will be working for multiple employers (for example, they are performing in a concert tour). In this case, contracts from each employer must be submitted, as well as an itinerary. The petition should be filed at the regional service center with jurisdiction over the U.S. agent. If the petitioner is a foreign employer, the application should be filed at the regional service center with jurisdiction over the location of the first place the beneficiary will work. The petition is to be approved for the duration of the event in which the foreign national will participate for or a maximum of three years. An O visa may be extended in one-year increments for an indefinite period of time. The application for an extension does not need to include a consultation, and requires only a statement of why the extension is sought. Finally, O visas are what are known as "dual intent visas," meaning that even though the applicant has filed a labor certification or petition for classification as a preference worker leading to permanent residence, the O visa cannot be denied.
To schedule an initial consultation with a Memphis Immigration attorney, call (901) 692-5732 or with a New York City Immigration Attorney, call (646) 380-0474 or contact Witty Law Group, PLLC.