O Visas

O-1 Visa: Individuals with Extraordinary Ability or Achievement

An O-1 nonimmigrant visa is available for one who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or an individual who has been recognized internationally or nationally for extraordinary achievements in the movie or television industry. Those who may obtain O-1A status are those individuals who hold extraordinary abilities in the sciences, education, business, or athletic fields. O-1B status is for those with extraordinary ability or in the arts or have extraordinary achievement in the movie or television industry. O-2 Visas are available for those who will come to the United States with O-1 artists or athletes, to help in a specific event or performance/show. To be applicable, the O-2’s help must be an integral part of the O-1A’s activity in the United States. These standards are of an essential nature for an O-2 holder to accompany an O-1B holder. The O-2 worker must have a set of critical skills and experience that the O-1 holder cannot perform or cannot be readily performed by a United States worker. O-3 individuals are those who are spouses or children of O-1 or O-2 visa holders.

Generally, to qualify for an O-1 visa, the applicant must show that they have extraordinary ability by sustained national or international acclaim and that they are only temporarily coming to the United States to continue their extraordinary work in their field. To show extraordinary ability in the areas or science, education, business, or athletics a special level of expertise that indicates that the individual is of a very small percentage of individuals who have risen to the very top of their field. To show extraordinary ability in art means to have distinction. This means that there is a high level of achievement in the field of the arts shown by a degree or skill and recognition that is substantially above work that can be ordinarily encountered. The person must be described as prominent or renowned, and be a well know name in the arts. An applicant who qualifies for an O-1 visa in the movie or television industry must show extraordinary achievement that has been when a person is recognized as outstanding, notable, or a leader in the television or movie industry.

To apply for an O-1 visa, the applicant must file the Form I-129 with the USCIS office that is listed in the form instructions. The petition is not to be filed more than one year before the actual need for the alien’s services. It is helpful if the I-129 is filed at least 45 days before the date of employment so that there are no delays. In addition to the I-129 form, the applicant must also submit documentation of:

  • 1) a written consultation that shows that the applicant has extraordinary ability in their field or work or study, this document is usually written by a peer from the applicant’s same group or by a person with like expertise and experience in the field (a consultation may be waived if the applicant can demonstrate that an appropriate applicant from the peer group does not exist, in this case the decision will be based on evidence of record),
  • 2) a contract between the applicant and beneficiary (this must show that the agreement was offered by the employer and accepted by the employee),
  • 3) itineraries with an explanation of the nature of the events or activities that also shows beginning and ending date.

 

An agent in the United States may be the actual employer or beneficiary for the holder of an O-1 visa. The agent may also be the representative of bother the employer and employee. If the petitioner is filing as an agent for multiple employers, the agent must establish that they are duly authorized as an agent for the other employers. Any agent who is applying for and filing I-129 petitions for multiple employers must include with the petition:

  • supporting documentation that shows a complete itinerary of events with specific dates,
  • contracts between the employer and employee, explanation of the employer’s terms in the documentation.

If the agent is to be performing the function of an employer, then the I-129 form must include:

  • the contractual agreement between the agent and beneficiary which includes the payment offered,
  • and other terms and conditions of employment,
  • and a petition which requires the employee to work in more than one location must include an itinerary with all the terms and conditions of the employment.

 

The itinerary has no exceptions, but the USCIS will give some flexibility as to how detailed the itinerary must be, and takes into account the industry standards when they determine whether the itinerary requirement has been met.

If the agent is filing an I-129 for foreign employers, the agent must submit the minimum general documentation that is required for all other O-1 petitions which include: copies of the written contract between the foreign employer and beneficiary, an explanation of the nature of the events or activities that includes the beginning and ending dates of the activity, a written advisory opinion from the appropriate consulting entity or entities.

For an applicant to be eligible for an O-1A visa, they must include at least three of the following:

  • 1) a receipt of national or international recognized prizes or awards proving excellence,
  • 2) membership in an association in the field for which classification is sought which require outstanding achievements,
  • 3) published material in professional or major trade publications that show that the applicant is working in the field with high achievements,
  • 4) original scientific, scholarly, or business related contributions of major significance in the field of work/study,
  • 5) authorship of scholarly activities in professional journals or other major media in the field for which classification is sought,
  • 6) a high salary or other remuneration for services as shown by contracts or another reliable service,
  • 7) participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialized allied to that field for which classification is sought,
  • 8) employment in a critical or essential capacity for organizations and establishments that have distinguished reputation. If these standards do not apply to the beneficiary’s occupation, then the petitioner may submit comparable evidence in order to establish eligibility.
    • such as an Academy Award, Emmy, Grammy or Director’s Guild Award, or the applicant must show evidence of at least three of the following:
      • 1) that they have performed, or will perform services as a lead or starring participant in productions or events which have a high representation shown by critic reviews, advertisements, public releases, publications, or contracts/endorsements,
      • 2) achieved national or international recognition for achievements,
      • 3) that they will perform, or have performed as a lead, starring, or critical role for organizations and establishments that have a distinguished reputation shown by articles in various publications,
      • 4) that they have received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the beneficiary is engaged, this must include testimonials that clearly indicate the author’s authority, expertise and knowledge of the beneficiaries achievements,
      • 5) that they earn a high salary or other substantial remuneration for services in relation to others in the field, this can be shown by contracts or other reliable evidence.

To apply for an O-2 visa, the applicant must file a petition with the USCIS for their O-2 visa. In addition the applicant should file a Form I-129 with the USCIS. An O-2 alien must be petitioned for along with the services of an O-1 artistic or athletically gifted alien. In addition, the applicant must provide documentation evidence that is the same as that of an O-1 visa holder. An applicant must also provide appropriate evidence, which should establish the critical skills and experience that the O-2 applicant will provide for the O-1 holder. In situations of movies and television productions, there should be evidence provided that will establish that a significant movie or television production has taken place outside of the United States and will also take place within the United States. In this situation there must be proof that the continued participation of the O-2 applicant is essential to provide successful completion of the project.

 

For more information regarding O-1 Visas, and the process of obtaining a O-1 Visa, please contact the Law Office of Jeffery Bennett via phone: 816-759-2776 (English), 816-759-2777 (Spanish); or via email: jyb@jybennettlaw.com.