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Employment-Based Nonimmigrant O-1 Visa

What is an O-1 visa?
The O-1 visa is a non- immigrant employment-based visa classification for foreign nationals who can demonstrate the sustained national or international acclaim and recognition for their achievements in the field of Sciences, Education, Business, or Athletics. It requires the employer to file a petition for a nonimmigrant worker, along with evidence of the individual’s extraordinary ability.

The individuals must have “extraordinary ability” in the field of their expertise. Such ability must be extensively documented.

The O-1 visa is also available to those in arts, motion pictures and television who can demonstrate a record of “extraordinary achievement”. The USICS interprets the statute very broadly to encompass most fields of creative endeavor. The person entering the US must be coming to work in their field of ability.

An individual seeking an O-1 visa must have a sponsor. This means that the visa is employer specific and a job offer is needed from the sponsoring employer.

What are the requirements for O-1A qualification?
Petitioner should prove “extraordinary ability” by providing evidence either of the beneficiary’s receipt of a “major, internationally recognized award, such as Nobel Prize”, or documentation of at least three of the following:

  1. Receipt of nationally or internationally recognized prizes/awards for excellence in the field;
  2. Membership in associations in the field that require outstanding achievement of their members, as judged by recognized national or international experts;
  3. Published material in professional or major trade publications, newspapers or other major media about the alien and the alien’s work in the field for which classification is sought;
  4. Original scientific, scholarly, or business-related contributions of major significance in the field;
  5. Authorship of scholarly articles in professional journals or other major media;
  6. Past or current proffered high salary or other remuneration for services evidenced by contracts or other reliable evidence;
  7. Participation on a panel or individually as a judge of the work of others in the same or an allied field of specialization for which classification is sought;
  8. Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.

What are the requirements for O-1B qualification?
Petitioner should prove that he/she has received, or been nominated for, significant national or international awards or prizes in the particular field, such as an Academy Award, Emmy, Grammy or Director’s Guild Award, or evidence of at least (3) three of the following:

  1. 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 releases, publications, contracts or endorsements;
  2. Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications;
  3. Performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials;
  4. A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers or other publications;
  5. Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the beneficiary is engaged, with the testimonials clearly indicating the author’s authority, expertise and knowledge of the beneficiary’s achievements
  6. A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence.

What is the advisory opinion?
Before an O-1 visa can be granted, the applicant must go through a special consultation process. The applicant must get an “advisory opinion” from a peer group (a group of professionals in the alien’s occupation or profession) or from a union, labor, or management organization. An “advisory opinion” is a letter from an organization stating that the position the applicant will hold requires extraordinary ability.

What if no appropriate union exists in the case of arts?
Consultation with an appropriate peer group, labor and/or management organization regarding the nature of the proposed work and the beneficiary’s qualifications is mandatory before an O-1 petition can be approved. This requirement may be especially important in the arts, entertainment fields, or athletics.

If no appropriate labor union exists, then the Petitioner has to demonstrate that an appropriate peer group, including a labor organization does not exist. USCIS will then make a decision based on the evidence of record.

Additionally, in this situation, employers may submit an advisory opinion from an individual expert in the field, a peer group, or management organization that describes the beneficiary’s ability and achievements, the nature of the duties to be performed, and whether the services require someone of extraordinary ability.

Can the individual work for more than one employer?
The answer is yes. If the individual works for more than one employer at the same time, each employer must file a separate petition with the USICS.

What will happen if the employment of the O-1 holder is terminated?
If the employment is terminated for reasons other than voluntary resignation, the employer is liable for the reasonable cost of return transportation of the individual to his/her last place of residence prior to entry into the US.

What if the O-1 visa applicant has a permanent labor certification or has filed a preference petition for permanent residence?
Regulation states that the approval of a permanent labor certification or filing of a preference petition for permanent residence shall not be a basis for denying an O-1 petition, a request to extend such a petition, or the alien’s application for admission, change of status, or extension of stay.

How long can one maintain O-1 status?
There is no maximum period for O-1 status. Theoretically, it can be indefinite. However, the length of the status is determined by the length of time needed for the alien to perform his/her duties or activities with the US employer.

An initial stay is limited to no more than three years, provided the petition can establish that the O-1 alien will need this much time for the proposed employment. This period may be extended at one-year increments thereafter, upon evidence showing that the alien’s continued presence would be required. An O-1 visa can be extended on a yearly basis for an indefinite period. The Form I-129 is to be filed by the employer to seek extension. Though the application for an extension does not include a consultation, it however requires a statement of the reason for an extension.

What type of visa will family members hold?
The spouse and unmarried children under the age of twenty-one (21) may apply for O-3 visa or status, in order to accompany the -O-1 visa holder to the US. The O-3 visa status does not confer authorization for employment in the US.

What is the O-2 visa?
An O-2 visa can be obtained for those accompanying the O-1 visa holder who will assist the O-1 alien in their performance. To qualify for an O-2 visa, the applicant must meet the following requirements:

  • Have a vital role in the central performance;
  • Have essential skills and a wealth of experience that is above average standards;
  • Have a committed professional association with the O-1 visa holder;
  • Must prove the possession of a foreign residence, which will not be abandoned. A specific date of exit should also be expressed. Must gain a labor consultation from the Labor Organization.

Evidence must be submitted to establish the applicant’s essential role, and that they have skills and experience not possessed by an immediately available US worker.

How do you file an extension of stay for O-3 Visa?
The dependents of O-1 or O-2 visa holders are allowed to stay till the time the principal applicant accomplishes the task. The dependent has to file a petition on the Form I-539 for an extension. The extension is given in yearly increments. Since the O-1 and O-2 visa is employer-specific, and O-3 visa holder are the dependents i.e. the spouse and unmarried minor children of the O-1 visa holders.

I am in J-1 status subject to the 2-year home country residence requirements. May I apply for O-1 status in U.S. to continue my research project?
As a J-1 holder, you can change to O-1 visa, but you have to apply for an O-1 visa from a U.S. Consulate abroad, because you may not change to a Nonimmigrant status in the U.S. before you satisfy the two years home country residence requirement or obtain a waiver to the requirement.

Your employer needs to file an O-1 petition. Once the O-1 petition is approved, you need to apply for O-1 visa at a U.S. consulate abroad. After you obtain an O-1 visa, you can enter the U.S. without fulfilling the two year residency requirement or getting a waiver of the requirement.

What if the O-1 visa applicant has a permanent labor certification or has filed a petition for permanent residence?
USICS regulation states that the approval of a permanent labor certification or filing of a preference petition for permanent residence shall not be a basis for denying an O-1 petition, a request to extend such a petition, or the alien’s application for admission, change of status, or extension of stay.

As an employment related nonimmigrant status, what is difference between O-1 and other employment related nonimmigrant status, like H-1B?
O-1 Status is distinguished from other employment related statuses in that it applies to more types of work areas than other employment related nonimmigrant statuses. For instance, H-1B status is limited to foreign professionals with at least a bachelor’s degree for a specialty occupation, which cannot apply to alien Athletes or Entertainers without such educational back ground. On the other hand, such Athletes or Entertainers can apply for O-1 status. However, the requirements of O-1 are much higher than that of H-1B. Also, O-1 status could be obtained by those in H-1B status who have exhausted the full-authorized stay.