The O visa is designed for highly talented or acclaimed individuals. This visa is available to artists, entertainers, athletes or businessmen. The O visa provides an alternative to the H1-B degreed professional category. Unlike the H1-B visa, it does not require wage certification or a professional degree. It is also not subject to quotas as with many other types of visas.
Legal Authority and Scope
Section 101(a)(15)(O) of the INA designates the O-1, O-2 and O-3 visa classifications for aliens of extraordinary ability in the sciences, arts, education, business or athletics. The O-2 category is designated for certain aliens accompanying O-1 aliens in the arts or athletics, while O-3 visas are designated for dependents of aliens holding O-1 and O-2 visas. The regulations governing this category are found at 8 CFR §214.2(o).
O-1 Category and Definition of Extraordinary Ability
Aliens are eligible for O visas if they possess extraordinary abilities “demonstrated by sustained national or international acclaim”. Extraordinary represents a high standard as applied to businessmen, scientists, educators and athletes. A slightly lower standard, that of a demonstrated record of extraordinary achievement is applied to artists and entertainers. Pursuant to 8 CFR §§214.2(o)(2)(ii) and (iii), the achievements of O-1 beneficiaries must be “recognized in the field through extensive documentation.”
Extraordinary Ability Standard for Scientists, Educators, Businessmen and Athletes
The petitioning employer must show that the alien possesses extraordinary ability or achievement and will work in the United States to apply this expertise. Extraordinary ability means that an alien has risen to the very pinnacle of his field. Under 8 CFR §214.2(o)(3)(iii), the petitioner must prove this ability by providing evidence, for example, a “major, internationally recognized award, such as a Nobel Prize” or documentation of at least three of the following:
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Receipt of nationally or internationally recognized prizes or awards for excellence in the field;
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Membership in associations that require outstanding achievement as judged by well-recognized national or international experts;
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Published material in professional or major trade publications or media about the alien;
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Participation on a panel or work as a judge of the work of others in the same or similar field of specialization;
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Original scientific, scholarly or business-related contributions of major significance;
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Authorship of scholarly articles in professional journals or other major media;
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Current or previous employment in a critical or essential capacity for organizations and establishments that have distinguished reputations; or
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Past or proffered remuneration for services, evidenced by contracts or other reliable evidence.
These standards are similar to those of 8 CFR §204.5(h)(3), applicable to employment-based, first-preference petitions for aliens of “extraordinary ability” and similar to those under Schedule A, Group II and first preference employment based immigration described in much detail on this site in the section devoted to the employment based immigration. If the above-mentioned requirements do not apply, then the petitioner can submit comparable evidence of eligibility. There are no set standards of what constitutes comparable evidence, and the success rate of O-visa approvals varies among USCIS’ service centers.
To obtain an O-1 visa, it is important to define the field of endeavor in which the alien excels. If it is defined narrowly, then it is easier to demonstrate that the alien has extraordinary ability in his field. On the other hand, one has to be careful not to define the field too narrowly since USCIS may deny the petition. Why exactly? (An example of this is stating that an alien is a college professor versus a Latin professor). O visas are not available to businessmen seeking admission based on their executive or managerial skills. Therefore, for businessmen, it may be more practical to apply for H-1B visas. The H-1B visa, however, is not available for athletes due to the lack of occupational codes for this group. An experienced attorney will advise the athlete whether to apply for O-1 status or permanent residence in the employment-based first category.
Extraordinary Ability Standard for Artists and Entertainers
(Except for Those Affiliated with the Motion Picture or Television Industries)
Pursuant to Section 101(a)(46) of the INA, for purposes of the arts, “extraordinary ability” means “distinction”. Distinction means “a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts” as defined in 8 CFR §214.2(o)(3)(ii).
Under 8 CFR §214.2(o)(3)(ii), the term “arts” includes “any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and forming arts.” This term is defined broadly and encompasses not only performers but other creative occupations such as designers, choreographers, music teaches and even animal trainers. Professionals such as coaches, trainers, sail designers and race mechanics have qualified O-1 visas.
A petitioner must show that the O-1 artist meets the standard of distinction, namely, that he is recognized as being prominent in his field, either by showing that the beneficiary has been nominated for or has received a significant national or international award or prize, such as an Academy, Emmy or Grammy award, or that the beneficiary has at least three of the following:
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performed or will perform services as a lead or star in productions or events with distinguished reputations as shown by critical reviews, ads, publicity releases, publications, contracts or endorsements;
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received significant recognition from organizations, critics, governmental agencies or recognized experts through critical reviews in major papers, trade journals, magazines etc.;
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performed as a lead or star for organizations and establishments that have distinguished reputations as evidenced by media articles, testimonials etc.;
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a record of major commercial or critically acclaimed success;
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has commanded or will command a high salary or other remuneration in relation to others in his field.
Artists and entertainers may provide comparable evidence to comply with the above-referenced requirements.
Extraordinary Ability Standard for Artists in the Motion Picture or Television Industries
Artists as well as directors and other essential, creative personnel seeking entry in conjunction with motion picture or television industries are subject to another definition of “extraordinary achievement,” the essence of which is the following:
As commonly defined in the industry… a very high level of accomplishment in the motion picture or television industry evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent that the person is recognized as outstanding, notable, or leading in the motion picture or television field.
Artists in the motion or television production industries must meet the same evidentiary criteria but are required to establish “distinction”. They, however, may not provide comparable evidence to comply with these requirements. Therefore, the petitioner must provide evidence of awards and prizes attesting to the distinction in the motion or television industry.
O-2 Visas for Aliens Accompanying the O-1 Visa Holder
This category is designed for aliens accompanying O-1 aliens who are athletes or work in the arts, motion picture or television industries. The O-2 visa, however, is not available for aliens accompanying scientists, educators or businessmen. In addition, O-2 visa holders can only work for an O-1 alien, and their visas must be applied for when that for the O-1 petitioner is made.
To qualify for O-2 visas, aliens must:
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enter the United States solely to assist the O-1’s performance;
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be integral parts of the actual performance;
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have critical skills and experience with the O-1 alien that are not of a general nature and cannot be performed by American artists; and
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have foreign residences that they do not intend to abandon.
O-2 Visas for Aliens accompanying the O-1 Visa Holder in the Motion Picture and Television Industries
According to 8 CFR §214.2(o)(4)(ii)(B), an O-2 alien must have skills and experience:
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with the O-1 alien that are not of a general nature;
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with the O-1 alien that are critical based on a long-standing, working relationship; or
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that are essential to the successful completion of the production on which the O-1 visa holder will work.
Filing Procedure
The O-1 petitioner must file, in duplicate, a Form I-129 with the O supplement. He can only include one O-1 beneficiary on the petition, whereas O-2 beneficiaries can be grouped on Supplement I. The petitioner must file with USCIS service center having jurisdiction over the location in which the beneficiary will work. If the beneficiary will work in several locations, then the petitioner must include an itinerary specifying them as well as the dates for each. The petitioner may file a request for expedited processing on Form I-907, which requires an additional fee.
The O-visa beneficiary may work for several petitioners as long as they file a separate application for each employment. If the beneficiary changes employers, then the new employer or petitioning agent must file both a petition and an extension of stay. The subsequent employer must file a new petition with the service center of original jurisdiction to reflect any material changes in the terms and conditions of employment or the beneficiary’s eligibility. USCIS’ regulations prohibit substitutions of all O-2 personnel.
Union Consultation
The petitioner must obtain a consultation from a labor union before an application for O-2 visa is filed with USCIS. Usually, the proper union to consult is that which has a collective bargaining agreement in the particular field that the O-2 visa petitioner wishes to enter. If there is no such union, then he must consult with one that has extensive history in the field. If there is no such labor union, then USCIS will waive the consultation requirement. Consultations may consist either of the union’s opinion regarding the nature of the proposed work and the alien’s qualifications or a simple letter of no objection. If the union objects, however, then its opinion should contain a “specific statement of facts which supports the conclusion reached” per 8 CFR 214.2(o)(5)(ii)(A), (iii), and (iv). Although required from the petitioner, such consultations are advisory only and not required to be used in USCIS’ decision making on whether to accept an O-2 application. The petitioner should request a consultation in advance of filing the application with USCIS by sending the appropriate union a copy of the proposed petition. In addition, the petitioner may provide consultations from nonunion sources, such as individual experts or associations, either separately or as part of the evidence of extraordinary ability or achievement.
The majority of petitions that require union approval are for artists, entertainers and athletes as well as their support personnel. If the O-1 petition does not contain a union consultation, then USCIS is required to send a copy of the petition to the appropriate union within five days of receipt. The union has fifteen days to respond. If USCIS determines that a petition merits expeditious handling, and it does not already include an advisory opinion, then USCIS will contact the union directly for an expedited consultation. The union has twenty-four hours to respond by phone, or USCIS will adjudicate without an advisory opinion. The union has five additional working days to supply a written, advisory opinion. Reliance on this procedure is, in general, a bad idea because the more work USCIS must perform, the slower the outcome.
Petitions for O-1 aliens of extraordinary achievement in the motion picture and television industries require, in addition to a union consultation, a management consultation. The petitioner may obtain this management consultation from the Alliance of Motion Picture and TV Producers or Association of Independent Commercial Producers.
The consultation requirement for O-1 aliens of extraordinary achievement in the arts is waived when the alien seeks readmission to perform similar services within two years of a prior consultation for similar services.
Generally, unions provide consultations without delay or additional obstacles. Unions, however, charge fees for consultations. For petitions with numerous beneficiaries, consultations from several unions might be required depending on the job requirements. An experienced attorney can determine whether consultations from several unions are required.
Rules for Traded Professional O-1 Athletes
A professional O-1 athlete traded from one organization to another is automatically entitled to work for thirty days after the trade, provided a new I-129 is filed within that period. Once the I-129 is filed, the athlete will be authorized to work until USCIS completes its review. There is no foreign-residence requirement for O-1 aliens, who, along with their dependents, may seek permanent residence without jeopardizing their ability to maintain, extend or reacquire their status. O-2 aliens, on the other hand, must maintain a permanent residence abroad and, therefore, cannot obtain such status in the United States.
There is no limit on the length of admission for an O-1 alien. The law, however, allows admission only for the duration of the event. As a rule, the O-1 alien has three years to complete the event or activity allowed by this visa. An alien, though, may apply for one-year extensions to complete the same event or activity. In addition, extensions may be granted to O-1 professionals changing employment as long as the subsequent employment can be categorized as the same event or activity. For example, the transfer of a violin professor from one school to another is permitted. There is no limit to the number of extensions. Finally, an O-1 alien may arrive in the United States ten days prior to the scheduled event but may not work during this period.
The term “event” includes such activities as scientific projects, conferences, conventions, lecture series, tours, exhibits, business projects, academic years or engagements per 8 CFR 214.2(o)(3)(ii). Further, 8 CFR 214.2(o)(16) states that the term “activities” may include short vacations, promotional appearances and stopovers that are incidental but related to the event. A group of related activities falls under the definition of “activities.” If an O-1 alien is terminated from his employment, then the petitioner and employer are jointly and severally liable for his transportation costs to his last place of residence.