The O-1 visa is for individuals with extraordinary ability or achievement in sciences, arts, education, business, athletics, or who has a shown record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements. There are four categories of the O visa:
- O-1A: Individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry).
- O-1B: Individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry.
- O-2: Individuals who will accompany an O-1, artist or athlete, to assist in a specific event or performance. For an O-1A, the O-2’s assistance must be an “integral part” of the O-1A’s activity. For an O-1B, the O-2’s assistance must be “essential” to the completion of the O-1B’s production. The O-2 worker must have critical skills and experience that cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O-1 beneficiaries.
- O-3: Individuals who are the spouse or children of O-1 and O-2 beneficiaries.
Eligibility for O-1 Visa
To be eligible for the O-1 visa, you must have the intention to work in the United States temporarily and prove extraordinary ability or achievement in one or more of the following:
- In science, education, business or athletics by showing that you are in the small percentage of individuals who have risen to the top of your field.
- In the arts by showing that you have earned distinction in the field. Distinction means you have risen to a high level of skill in the arts for which you are prominent, renowned, leading, or well-known in the field of arts.
- In the motion picture or television industry by showing that you have a high level of skill as a recognized, outstanding, notable or leading person in the motion picture and/or television field.
What It Takes to Prove O-1 visa Eligibility
If you meet the eligibility requirements, your U.S. employer, your U.S. agent or an agent for a foreign employer may file the I-129 Petition for Non-immigrant Worker with the USCIS, along with evidence that prove each of the criteria above. The following documentary evidence must include:
1. The Consultation or a Request for a Waiver of the Consultation
The consultation is a formal advisory opinion prepared by a peer group in your field such as a labor union, labor organization or management company. The requirement for the consultation may be waived under certain circumstances:
- If you can show that no such peer group exists in your field; or
- If you are seeking an O-1 visa for employment within 2 years of the last consultation. You must submit a waiver request and a copy of the previous consultation.
2. Evidence of Extraordinary Ability or Achievement in your field.
For the O-1A visa, you must show that you’ve received a major, internationally-recognized award, such as a Nobel Prize, or evidence of at least (3) three of the following:
- Nationally or internationally recognized prizes or awards for excellence in your field.
- Membership in associations that require outstanding achievements in your field.
- Published material in professional or major trade publications, newspapers or other major media about your work in the field.
- Original scientific, scholarly, or business-related contributions of major significance in your field.
- Authorship of scholarly articles in professional journals or other major media in your field.
- A high salary or other compensation for services as evidenced by contracts or other reliable evidence.
- Participation on a panel, or individually, as a judge of the work of others in your field.
- Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.
- If the above evidence is not available or possible, then similar evidence is acceptable to show eligibility for this visa.
For the O-1B visa, you must show that you’ve 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:
- You performed and will perform as a lead or starring participant for organizations, in productions or events that have a distinguished reputation. Proving a distinguished reputation may be shown with critical reviews, advertisements, publicity releases, publications, contracts or endorsements.
- You achieved national or international recognition for your achievements.
- Evidence of major commercial or critically acclaimed successes of the production or motion picture.
- You received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which you are engaged, with the testimonials clearly indicating the author’s authority, expertise and knowledge of your achievements.
- A high salary or other substantial compensation for services in relation to others in your field, as shown by contracts or other evidence.
- Other comparable evidence.
3. Proof of an agreement between you and an employer
- A written contract for employment.
- Evidence of an oral contract for employment (evidence may include corresponding emails and a written summary of the terms of employment).
The above terms of the agreement must show the specific offers of the employer and your specific acceptance.
4. An Itinerary that shows the schedule of events or tours during your time in the U.S. and that such events are related to your field.
If you will be working with multiple employers, each employer must submit a petition to the USCIS service center in the jurisdiction of the employment. An employer can serve as an agent. Therefore, a single petition involving multiple employers may be submitted on one petition if one agent represents the multiple employers. The agent must show they are authorized to represent all employers on the petition. The agent must adhere to certain requirements.
- The agent must show that it is in business as an agent, which does not necessarily mean in ongoing and permanent business as an agent. Rather, agent in this context means an agent authorized to be your agent or other employers for the purpose of facilitating events, services, engagements that are subject of the petition. Documentary evidence of a duly authorized agent may be a signed agreement assigning the agent for purposes of filing the petition, other contracts, fee agreements or arrangements regarding events or service.
- The agent must submit the contract or summary of terms of employment for each employment.
- The agent must submit the complete itinerary for each employment with specific dates of events during each employment term.
What it Takes to Prove O-2 Visa Eligibility
The agent or employer must petition for the O-2 alien in conjunction with their services as the O-1 visa recipient or beneficiary. The O-2 application cannot be filed more than 1 year before the date of service or employment will begin. The following evidence should be submitted with the O-2 visa petition.
The O-2 Visa Consultation
If the O-2 petition is for support of an O-1 visa beneficiary, the consultation must be from the appropriate labor organization; or if the O-2 petition is for O-1 visa beneficiary in motion pictures or television, the consultation must come from an appropriate labor organization and a management organization with expertise in the field.
Exceptions to the Consultation Requirement:
If the petitioner can demonstrate that an appropriate peer group, including a labor organization, does not exist the decision will be based on the evidence of record.
Evidentiary Criteria for O-2
The evidence should establish the current important support, critical skills, and experience of the O-2 beneficiary with the O-1 beneficiary and that the beneficiary has substantial experience performing the critical skills and essential support services for the O-1.
In regard to a specific motion picture or television production, the applicant must show that there was significant production outside of the United States and there continued support is important to the O-2 beneficiary in order to complete the production.
Important Elements in the Application Process
Agent Performing the Function of an Employer
An I-129 filed by an agent performing the function of an employer must include:
- The contractual agreement between the agent and the beneficiary with the amount of the wage offered and the other terms and conditions of employment. There is no prevailing wage requirement. However, this is relevant to the terms of the employment.This can be a summary of the terms of the oral agreement or a written contract. A contract is not required between the beneficiary and the entities that will ultimately use your services.
- A petition which requires you to work in more than one location must include an itinerary with the dates and locations of work. There are no exceptions to the itinerary requirement when the petition is filed by an agent performing the function of an employer. However, USCIS does give some flexibility to how detailed the itinerary must be and does take into account industry standards when determining whether the itinerary requirement has been met. The itinerary should detail the type of work you will be doing, where, and when this work will be.
Please note that USCIS relies on the details of contractual agreement to determine whether the agent is functioning as the employer of the beneficiary. The contractual agreement should establish the type of working relationship between the agent and beneficiary and should clearly lay out how the beneficiary will be paid. In totality, if the terms and conditions of employment show a level of control over the beneficiary’s work being relinquished to the agent, then the agent may establish that it is performing the function of an employer. This determination will be on a case by case basis and will be based on the contractual agreement, whether written or oral.
Agent for Foreign Employers
Agents who file the I-129 petitions for foreign employers must submit the minimum general documentary “evidence as required for all O-1 petitions which include:
- Copies of any written contracts between the foreign employer and the beneficiary or a summary of the terms of the oral agreement under which the beneficiary will be employed
- An explanation of the nature of the events or activities, the beginning and ending dates for the events or activities, and a copy of any itinerary for the events or activities
- A written advisory opinion from the appropriate consulting entity or entities.
The regulations do not require any additional documentary requirements for an agent filing on behalf of a foreign employer, however, it is the foreign employer who is responsible for complying with all applicable employer sanctions provisions.
After Approval of the Petition
Once the visa petition is approved for the O-1/O-2 visa by USCIS, you can apply at a U.S. embassy or consulate for the visa. The embassy in the applicant’s home country establishes the visa application process and fees. You will submit the DS-160 Application for Non-immigrant Visa. You would then need to follow embassy instructions to apply for the non-immigrant visa. The embassy in your home country schedules the visa interview. The officer will review all documentation and your application at the interview and inform you of the decision at the interview.
If approved for the O-1 visa, you’ll be given a period of stay of up to 3 years with the possibility of extension in 1year increments. You are permitted to take your spouse and child(ren) with you to the United States. Your spouse and child(ren) under 21 years of age would be eligible for an O-3 visa. Spouses and children are unable to get work authorization under the O-3 visa, but may do part-time or full time studies while in the United States.
When considering whether to go through with this type of visa application, it is important to take other circumstances and factors into consideration. Failing to do this may cause complications during the application process. For instance, any facts that involve previous denials, past immigration and criminal violations, previous marriages that involved filings, entry with other types of visas, tax issues, visa overstays, and previous employment in the United States can be just as important as the basic eligibility criteria. A single criminal violation, whether a misdemeanor or more serious, or an immigration violation can lead you to be inadmissible to the United States, which may require additional steps to getting the visa, such as a waiver.
It is important to consult an experienced immigration attorney such as myself to assist you with your case. I can assist you with preparing the petition, assist with gathering evidence, and advocate vigorously for you during the process. Here at ST Law Office, I have dedicated my practice to immigration matters and have diverse experience surrounding these issues. I vigorously advocate no matter how simple or complicated the matter. Don’t hesitate to call us at 561-405-4889 or to schedule your initial phone, online or in-person consultation now.