O Visas

 

NON-IMMIGRANT VISAS FOR PERSONS WITH EXTRAORDINARY ABILITY

(O-1/O-2)

 

The ‘O’ visa is a NON IMMIGRANT VISA granted to persons who wish to work temporarily in the United States in a particular field in which they have an ‘Extraordinary Ability’. This usually encompasses the fields of the arts, sciences, education, business or athletics.

 

O-1A VISA

 

The O-1A visa is given to a person who has an extraordinary ability in the arts, sciences, education, athletics or business, which has been demonstrated by sustained national or international acclaim.

The petition for an O-1 visa must be filed by a U.S. employer. If the employer is a foreign one or the applicant is self-employed, then it must be filed through an authorized U. S. agent. Authorized U.S. agents are those who usually arrange short-term employment on behalf of self-employed individuals.

 

Sciences, Education, Athletics or Business

‘Extraordinary Ability’ in the field of science, education, business or athletics is defined as ‘a level of expertise indicating that the person is one of the small percentage who have risen to the very top of the field of endeavor’.

 

Documents Required

The petition (Form I-129) must be filed by a U.S. employer and be accompanied by:

  1. A written advisory opinion from a peer group (including labor organizations) or a person designated by the group with expertise in the alien’s area of ability;
  2. A copy of any written contract between the employer and the alien or a summary of the terms of the oral agreement under which the alien will be employed;
  3. Proof that the applicant has sustained national or international acclaim by showing:a. Receipt of a one-time achievement, i.e., a major, internationally recognized award. (e.g. Nobel Prize)

 

Or documentation of at least 3 of the following factors:

b. Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor.

c. Membership in association in the field, which require outstanding achievements as judged by recognized national or international experts.

d. Published material about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field for which classification is sought.

e. Participation on a panel or individually as a judge of the work of others in the same or an allied field.

f. Significant contributions of original work in the related field

g. Authorship of scholarly articles in the field, in professional or major trade publications or other major media.

h. Evidence of display of the alien’s work at artistic exhibitions or showcases.

i. Evidence that the alien has performed in a leading or critical role for organizations/establishments/productions that have a distinguished reputation.

j. Evidence that the alien has commanded a high salary or other high remuneration for services or evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disc or video sales.

 

If the above standards do not readily apply to the alien’s occupation, he/she may submit comparable evidence to establish his/her eligibility.

 

Supporting Documents Required for Business Persons

To demonstrate that an alien is pre-eminent in the business field, it must be shown that he/she has achieved at least three of the following:

 

  1. Has managed a business worth at least $10 million.
  2. Has had at least 10 progressive years of responsible work experience culminating in a high-level or technical position with considerable responsibilities.
  3. Has a salary of at least $75,000/-.
  4. Oversees a sizable workforce, including professionals and managers.
  5. Has developed a system or product of major significance.
  6. Has made a significant contribution to the industry as documented by experts

 

 

Arts

‘Extraordinary Ability’ in the field of art means ‘distinction’, that is ‘a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered…’ This category requires the petitioner to establish only that the artist is ‘prominent in his/her field of endeavor’.

The term ‘arts’ is broadly defined to include any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts and performing arts, but does not include persons affiliated with the motion picture or TV industry.

Documents Required

The petition (Form I-129) must be filed by a U.S. employer and be accompanied by:

  1. A written advisory opinion, describing the alien’s ability, from a peer group (including labor organizations) in the alien’s field of endeavor; or a person or persons designated by the group with expertise in the alien’s area of ability;
  2. A copy of a written contract between the employer and the alien or a summary of the terms of the oral agreement under which the alien will be employed;
  3. Proof that the applicant has sustained national or international acclaim by showing:a. Receipt of a one-time achievement, i.e., a major, internationally recognized award. (e.g. Grammy Award).

Or documentation of at least 3 of the following factors:

b. Evidence to show leading participation in productions or events with distinguished reputations as shown by critical reviews, advertising, publicity releases, publications, contracts or endorsements.

c. Evidence to show national or international recognition for achievements through critical reviews or other published materials by or about the alien in major media or trade publications.

d. Evidence to show that the alien has performed in a lead, starring or crucial role for organizations and establishments that have a distinguished reputation.

e. Evidence that the alien has a record of major commercial or critically acclaimed success.

f. Evidence that the alien has achieved significant recognition from organizations, critics, government agencies, or recognized experts.

g. Evidence of display of the alien’s work at artistic exhibitions or showcases.

h. Evidence that the alien has commanded or will command a high salary or other remuneration in relation to others in the field.

i. Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disc or video sales.

 

If the above standards do not readily apply to the alien’s occupation, he/she may submit comparable evidence to establish his/her eligibility.

 

O-1B VISA

The O-1B visa is issued to persons who are involved with the motion picture or TV industry and who have ‘a demonstrated record of extraordinary achievement’ and can prove it through extensive documentation.

In the motion picture or TV industry, extraordinary achievement means a ‘very high level of accomplishment in the motion picture or TV industry evidenced by a degree of skill and recognition substantially above that ordinarily encountered…’ The person must be ‘outstanding or notable’, and must ‘meet a higher standard’.

 

 

Documents Required

The petition (Form I-129) must be filed by a U.S. employer and be accompanied by:

  1. Separate written advisory opinions from a labor and a management organization with expertise in the alien’s field of endeavor are required.
  2. A copy of any written contract between the employer and the alien or a summary of the terms of the oral agreement under which the alien will be employed;
  3. Proof that the applicant has sustained national or international acclaim by showing:a. Receipt of a one-time achievement, i.e., a major, internationally recognized award. (e.g. Academy or Emmy Award )

 

Or documentation of at least 3 of the following factors:

b. Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor.

c. Membership in association in the field, which require outstanding achievements as judged by recognized national or international experts.

d. Published material about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field for which classification is sought.

e. Participation on a panel or individually as a judge of the work of others in the same or an allied field.

f. Significant contributions of original work in the related field

g. Authorship of scholarly articles in the field, in professional or major trade publications or other major media.

h. Evidence of display of the alien’s work at artistic exhibitions or showcases.

i. Evidence that the alien has performed in a leading or critical role for organizations/establishments/productions that have a distinguished reputation.

j. Evidence that the alien has commanded a high salary or other high remuneration for services or evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disc or video sales.

 

If the above standards do not readily apply to the alien’s occupation, he/she may submit comparable evidence to establish his/her eligibility.

 

 

O-2 VISA – Support Personnel

 

This visa is issued to persons who wish to accompany assist in the specific artistic or athletic performance of the O-1 visa holder. This person would be acting as an essential and integral part of the artistic or athletic performance of an O-1 artist or athlete because he or she performs support services which cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O-1. O-2 visas are generally not available if the O-1 holder works in the field of science, business, or education.

 

There can be more than one person who may be granted an O-2 visa under the umbrella of a single O-1 visa holder.

 

The person must comply with the following requisites:

 

  1. He/she is entering the U.S. solely for the purpose of accompanying the O-1 visa holder.
  2. He/she must be an integral part of the actual performance.
  3. He/she must have critical skills and experience with the O-1 visa holder, which are not of a general nature and cannot be performed by other U.S. workers.
  4. He/she has a foreign residence, which he/she does not intend to abandon.

 

 

Documents Required

The petition must be filed by a U.S. employer in conjunction with the filing of the O-1 alien petition and must be accompanied by:

 

  1. A written advisory opinion:
    a. If the O-2 petition is for an alien accompanying an O-1 alien of extraordinary ability in the arts, the opinion must be from a labor organization with expertise in the skill area involved.
    b. If the O-2 petition is for an alien accompanying an O-1 alien of extraordinary achievement in the field of motion picture or television, the opinion must be from a labor organization and a management organization with expertise in the skill area involved.
  2. Evidence to prove requisites 1 – 4 mentioned above.
  3. In the case of a specific motion picture or television production, the evidence should establish that significant production has taken place outside the U.S., and will take place inside the U.S. and that the continuing participation of the alien is essential to the successful completion of the production.

 

 

O-3 VISA – Family

This visa is issued to spouses and minor dependent children of the O-1 visa holder. It does not allow the alien to work in the United States and is valid for the same duration as the principal O-1 visa. INS Form I-539 should be filled and submitted with the application for the O-1.

 

DURATION OF ‘O’ VISAS

The period of authorized stay for O Visas is the duration of the event or events, but in no case more than three years. Extensions to continue/complete the same events may be obtained for one year at a time. If you file for an extension before your authorized stay expires, you are automatically permitted to continue working for up to 240 days while waiting for a decision.

General Note: All petitions must be filed within the six-month period preceding the alien’s entry to the United States. There are no quota restrictions on these visas. It is also possible for an alien to file for an immigrant visa under the heading of ‘Extraordinary Ability’ – EB-1 category. The requirements are largely similar to those for a non-immigrant visa though the criteria are viewed more strictly.

InfoLinks:

O-1 / O-2 Visas – Bulletin 15

 

Immigrant Visas for Persons with Extraordinary Ability

(Under the Employment Based Category – Priority Workers – EB1)

 

Non-immigrant Visas for Athletes and Entertainers

(‘P’ visa category)

 

Aliens with Extraordinary Ability (O’s)

(INS Link)

 

 

The information in this article is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice and does not establish an attorney-client relationship between Jethmalani & Nallaseth PLLC and the viewer.