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O-1 Extraordinary Ability Nonimmigrant Visa

Q: What situations are appropriate for an O-1 Non-immigrant Visa?

A: The O-1 visa is for foreign nationals of extraordinary ability in the sciences, arts, education, business or athletics (the O-1A visa) or extraordinary achievement in motion picture or TV production (the O-1B visa). A great many occupations will fit into these categories, and U.S. Citizenship and Immigration Services has traditionally taken a very broad view of which occupations are suitable for an O-1 visa - especially under the O-1A category.

The larger question with regard to appropriate situations for the O-1, we shall see below, is not so much an individual's field but how far one has advanced in that field.

Q: What does "extraordinary" mean?

A: Admittedly, "extraordinary" is a somewhat vague term, and at first would seem difficult to define. For an O-1A, a foreign national must have demonstrated sustained national or international acclaim. For an O-1B, a foreign national must have a demonstrated record of extraordinary achievement, as demonstrated through extensive evidence.

Q: How does one prove that they are "extraordinary" within these definitions?

A: There are slightly different standards depending upon the field and type of O-1 sought, but for any type of O-1 the documentation will need to be substantial and include testimonials from others with knowledge of the field attesting to the extraordinary nature of the beneficiary's skills.

For O-1As seeking classification as extraordinary in the sciences, education, business or athletics, extraordinary ability may be demonstrated either by receipt of a major internationally recognized award such as the Nobel Prize or (more realistically) by meeting three out of eight possible criteria which are viewed as indicative of extraordinary ability. These criteria include:

  • Evidence that s/he has been employed in a critical or essential capacity at an organization with a distinguished reputation;
  • Original/unique scientific or scholarly work of major significance in his or her field;
  • Membership in an organization that requires outstanding achievement for membership (this is often difficult – mere membership in a professional society is normally insufficient);
  • Receipt of nationally or internationally recognized awards (awards from academic programs normally aren’t sufficiently national/international in scope);
  • Evidence of authorship of scholarly work by the foreign national (conference presentations by themselves are normally insufficient, but can bolster actual publications);
  • Published materials about the applicant in professional or major trade publications (the distinction is that this “test” involves publications about the individual, rather than by the individual);
  • Judgment of the work of others (this often means peer review of academic papers but can also be judgment of various types of competitions); or
  • Has commanded or will command a high salary in relation to others in the field (determined with reference to others doing the same job at the same level in the same geography – if in the US, the best comparison is normally Department of Labor Surveys - http://www.flcdatacenter.com/OesWizardStart.aspx to check a place/job).

For O-1Bs seeking that classification on the basis of extraordinary achievement in the arts or in the motion picture or television industry, the criteria are somewhat different to those in place for O-1As:

  • Beneficiary has performed and will perform services as a lead or starring participant in productions or events that have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements;
  • Beneficiary has achieved national or international recognition for achievements;
  • Beneficiary has performed or will perform in a lead, starring or critical role for organizations or establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials;
  • Evidence of the major commercial or critically acclaimed success of the beneficiary;
  • Beneficiary has Attained Significant Recognition from Organizations, Critics, Government Agencies or Other Recognized Experts in the Field; or
  • Beneficiary has commanded or now commands a high salary or other substantial remuneration for services in relation to others in the field

Because of the quantity and caliber or evidence required to convince USCIS to grant O-1 status, the O-1 is often appropriate only where an individual has advanced to a point in their career where a sufficient number of the above factors are met, and sufficient professional contacts have been made so that the required letters will be obtainable.

Often, someone who is quite skilled at what they do may not yet be a viable candidate for an O-1 visa simply because they are too young and not yet sufficiently advanced in their career to have built up a sufficient history of achievement. However, this doesn’t necessarily rule out the category forever: with some lead time and effort, an individual can actually make themselves extraordinary by publishing articles, volunteering to judge competitions/peer review papers, networking in such a way as to be interviewed or quoted in articles in major media.

Q: Other than arguments that the individual meets enough of the O-1 criteria, what else goes into an O-1 case?

A: There are some further requirements. All O-1 applications are required to have advisory opinions from an appropriate union and sometimes a management group. This requirement is excused where no union or trade group exists for a profession, and in the sciences and business fields this is often the case.

While not - strictly speaking - a legal requirement, as a practical matter O-1 petitions will normally need to have letters from others prominent in the field attesting to the O-1's extraordinary abilities in that field.

Q: Because of the nature of what I do, I need another individual to assist me and frequently work with the same person - will this person be able to accompany me?

A: Normally, yes. An O-2 visa is for someone accompanying an artist or athlete to assist in the artistic or athletic performance. The O-2 must be an integral part of the actual performance and have critical skills and experience which are fairly specific to the performance and which could not be performed by others. There are special rules for O-2s in motion picture or television production, and any O-1 must be prepared to demonstrate that they have a foreign residence which they have no intention of abandoning.

Q: Can I apply for permanent residence while here an O-1 visa?

A: Yes. While the O-1 is not specified as a "dual-intent" visa like the H-1B or L-1, there is no requirement that the O-1 visa holder maintain an overseas residence and no standard of non-immigrant intent is applied to those seeking O-1 entry - so an O-1 visa holder can apply for permanent residence. This is not true of O-2 holders, who must demonstrate that they will maintain an overseas residence.

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The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.