O-1 Extraordinary Ability Visas
The O nonimmigrant visa category applies to foreign nationals of extraordinary ability in the arts, athletics, sciences, education, business, or the motion picture or television industry who are coming to the United States to perform temporary services relating to an event or events. The O-2 visa is additionally available to accompanying foreign nationals who are coming to assist in the artistic or athletic performance of a foreign national of extraordinary ability.
Who Is Eligible?
A foreign national who has extraordinary ability in the arts, athletics, sciences, education, or business, and is coming to the United States temporarily to perform services for a U.S. employer in his or her area of expertise may be granted an O-1 visa. According to the USCIS, “extraordinary ability” means that the foreign national has reached a level of expertise indicating that he or she is one of a small percentage who have risen to the very top of his or her field of endeavor. In addition, the position the foreign national is coming to fill must require the services of an individual of extraordinary ability. The “Arts” may also include foreign nationals in the motion picture or television industry. To qualify for an O-1 visa, individuals in this industry are held to a slightly different standard that others applying for an O-1 visa. They must document “extraordinary achievement” through a demonstrated record of “distinction” or prominence. “Distinction” means a high level of achievement and skill substantially above that ordinarily encountered, to the extent that the foreign national in question is considered renowned, leading, or well-known in the field.
How To Apply
An employer may file a petition with the USCIS Service Center having jurisdiction over the where the job will be performed. If the job requires the foreign national to work in different locations, then the petition must be filed with the USCIS Service Center that has jurisdiction in the area where the petitioner is located. If a foreign employer, working through a U.S. agent, files on behalf of the foreign national, the petition must be filed with the Service Center that has jurisdiction in the area where the foreign national will first work. The petition must establish that the foreign national is an individual with extraordinary ability. Individuals who work in professions where self-employment is common, or where agents are normally used to arrange short term employment may file applications with an agent as the petitioner. While the regulations use the terms “agent”, this does not mean that only an entertainment agent can file a petition under this provision. Accountants, lawyers or other companies involved in the particular business may also function as an “agent” and file an O-1 petition. In the case of an O-1 filed through an agent, the petition must be filed with an itinerary and contracts with all of the actual employers. To establish that the foreign national has extraordinary ability in his or her field, the petition must be filed along with supporting documentation that demonstrates sustained national or international acclaim and recognition. The foreign national may present evidence of receipt of a major, internationally recognized award, such as a Nobel Peace Prize, or in lieu of such award, the foreign national may also qualify by submitting at least three (3) of the following forms of documentation:
- Documentation of the receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
- Documentation of membership in associations in the field, which require outstanding achievements as judged by recognized international experts;
- Published material in professional or trade publications or newsletters about the foreign national and his work in the field;
- Evidence that the foreign national has participated on a panel, or individually, as a judge of the work of others in the field or an allied field;
- Evidence of original scientific or scholarly research contributions of major significance in the field;
- Evidence of authorship of scholarly articles in the field in professional journals or other major media; or
- Evidence the foreign national commands a high salary or other high remuneration for services.
However, in order to qualify as a foreign national of extraordinary achievement in the motion picture or television industry, or as a foreign national of extraordinary ability in the field of arts, the foreign national may demonstrate his or her record of extraordinary achievement with the following:
- Evidence that the foreign national has been nominated for or has been the recipient of significant national or international awards or prizes in the particular field, such as an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award; or
- Documentary evidence of at least three (3) of the following:
- Evidence that the foreign national has performed or will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidences by critical reviews, advertisements, publicity release, publications, contracts, or endorsements;
- Evidence that the foreign national has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspaper, trade journals, magazines, or other publications;
- Evidence that the foreign national has performed in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publication, or testimonials;
- Evidence that the foreign national has a record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, credit for original research or product development, motion picture or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications;
- Evidence that the foreign national has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the filed in which the foreign national is engaged. Such testimonials must be in a form which clearly indicated that author’s authority, expertise, and knowledge of the foreign national’s achievement; or
- Evidence that the foreign national has commanded or now commands a high salary or other substantial remuneration for services in relation to others in the field, as evidence by contracts or other reliable evidence.
Also, before the USCIS can approve an O-1 visa petition an appropriate peer group, or labor and/or management organization, must provide a written advisory opinion regarding the nature of the work to be done by the foreign national, and the foreign national’s qualifications for such work. To facilitate USCIS’s adjudication, the petitioner should obtain the written advisory opinion, and submit it to USCIS with the petition. The advisory opinion should set forth a statement of facts which supports the conclusion reached in the advisory opinion. It must be signed by an authorized official of the group or organization. In the case of an foreign national who will be employed in the fields of arts, entertainment, or athletics where the USCIS determines that the petition merits expeditious handling, the USCIS may obtain the advisory opinion telephonically.
Duration of the Visa
An O-1 visa may be valid for the period necessary to accomplish the event or activity, but must not exceed three years. Extensions of one year may be obtained indefinitely. Should the foreign national’s employment terminates for other than voluntary resignation, the employer is responsible for the reasonable cost of return transportation of the foreign national to his or her last p
lace of residence prior to his or her entry into the United States.
Status of Spouse and Minor Children
A spouse and unmarried minor children of an foreign national who holds an O-1 visa are eligible for O-3 visas. They may not accept employment while in the United States while on an O-3 visa.
O-2 Visas for Accompanying Foreign Nationals
A foreign national who is coming to the United States temporarily for the purpose of accompanying and assisting in the athletic or artistic performance of a foreign national who has been granted an O-1 nonimmigrant visa may be granted an O-2 nonimmigrant visa. Click to read more on O-2 Visas.
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