O-1 Status for Aliens of Extraordinary Ability

Of the many non-immigrant classifications available under the Immigration and Nationality Act (INA), the O category for aliens of extraordinary ability may be the most interesting. Individuals are eligible to apply for O-1 status or an O-1 visa if recognized nationally or internationally for their unique or extraordinary abilities in the arts, sciences, business, athletics, education, or the motion picture and television industry.

These extraordinary artists, scientists, educators, athletes, and business people may need to come to the U.S. temporarily for work-related reasons. An O-1 visa allows them to live in the U.S. and work in their field of expertise for a specific period.

The O-1 visa is often called the artist visas as it is most commonly sought by designers, artists, and film and music industry professionals. However, the O-1 category extends to many fields of endeavors. The reason for the “artist visa” misnomer is that aliens in science, education, business, and athletics will often qualify more readily under different visa categories. 

O-1 status, or aliens of extraordinary ability nonimmigrant classification, is not to be confused with EB-1, an employment-based, permanent residency visa. Of the various distinctions between O-1 and EB-1, the main difference is the duration of an alien’s stay; O-1 visas grant temporary residency while an EB-1 green card provides permanent residence.

For an O-visa applicant’s achievements to be considered extraordinary according to INA standards, they must meet specific requirements explained in detail below. 

Who Can Apply for an O-1 Visa?

To be qualified under O-1 status, individuals must be considered extraordinary in their field of work. As this term can be somewhat elusive depending on the context, the Code of Federal Regulations (CFR) defines “extraordinary” differently depending on the alien’s field of endeavor. 

• Extraordinary achievement in art (general) means the applicant’s work must be distinct. The artist must have obtained a high-level degree of skill and recognition far above that which is generally encountered within their field. This applicant should be described as renowned, well-known, or leading in the field of arts. 

• Extraordinary achievement in science, education, business, or athletics specifies a level of expertise only the highest percentage of those in such fields have attained. 

• Extraordinary achievement for motion picture and television productions requires a degree of skill and recognition far above what is ordinarily encountered. This means the applicant must be recognized within their industry to be outstanding and notable, as well as leading in their field.  

Determining Aliens of Extraordinary Ability

With “extraordinary” well-defined, the O-1 visa applicant must then be able to demonstrate their extraordinary achievements with specified documentation. Each group, as detailed in the description of the term “extraordinary,” has unique requirements in qualifying for O-1 status, described here:  

Arts (General) 

1. The O-1 status applicant has been nominated for or has been the recipient of significant national or international awards or prizes in the particular field such as an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award.
2. Submit at least three of the following documents:

• Evidence of performing or intention to perform services as a lead or starring participant in productions or events which have a distinguished reputation.
  
• Evidence of attaining national or international recognition for achievements evidenced by critical reviews or other published materials (Can include major newspapers, trade journals, magazines, or other publications).
  
• Evidence of having had performed, or soon to perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or reputable testimonials.
  
• Evidence of a record of major commercial or critically acclaimed successes (including indicators such as titles, ratings, standing in the field, box office receipts, motion pictures or television ratings, etc.).
  

• Evidence of receiving significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the applicant is engaged.
  
• Evidence that the nonimmigrant has either commanded a high salary or will command a high salary or other substantial remuneration for services concerning others in the field.
  

3. The petitioner may submit comparable evidence to establish the beneficiary’s eligibility.

Science, Education, Business, and Athletics

1. Receipt of a major, internationally recognized award, such as the Nobel Prize; or
2. At least three of the following documents:
   1. Documentation of receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor.
      
   2. Documentation of membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields.
      
   3. Published material in professional or major trade publications or major media about the applicant, relating to the applicant’s work in the field.
      
   4. Evidence of participation on a panel, or individually, as a judge of the work of others in the same or an allied field of specialization.
      
   5. Evidence of original scientific, scholarly, or business-related contributions of major significance in the field.
      
   6. Evidence of authorship of scholarly articles in the field, in professional journals, or other major media.
      
   7. Evidence of employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.
      
   8. Evidence of either a high salary or commanding a high salary or other remuneration for services.
3. The petitioner may submit comparable evidence in order to establish the beneficiary’s eligibility.

Motion Picture and Television

1. Evidence of being nominated for, or the recipient of, significant national or international awards or prizes in the particular field such as an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award.
2. At least three of the following documents:
   1. Evidence of performing or soon to perform in services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications contracts, or endorsements.
      
   2. Evidence of achieving national or international recognition for achievements evidenced by critical reviews or other published materials.
      
   3. Evidence of performing or soon to perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation.
      
   4. Evidence of record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion picture or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications.
      
   5. Evidence of receiving significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the nonimmigrant is engaged.
      
   6. Evidence of either commanding a high salary or planning to command a high salary or other substantial remuneration for services concerning the field, as evidenced by contracts or other reliable evidence.

While Motion Picture and Television and Arts (general) are quite similar, note there is no provision for “comparable evidence” in these cases, meaning there is no range of relevant information to support evaluation of such proof of “extraordinary achievement.” Also, the United States Citizenship and Immigration Services (USCIS) will apply the higher threshold of “extraordinary achievement” to motion picture or television artists. 

How to Obtain O-1 Status 

All aliens seeking O-1 status must go through a detailed petition process to be considered. It is essential to understand the particular stages of these proceedings.

Initially, an O-1 petition may only be filed by a United States employer, a United States agent, or a foreign employer through a U.S. agent. Also, the petition cannot be filed more than six months before the alien’s services are needed.

Not all aliens may file petitions through United States agents. The Council on Foreign Relations (CFR)  allows U.S. agents to file petitions for self-employed workers or workers who use agents to arrange short-term employment on their behalf with numerous employers. They may also file in cases where a foreign employer authorizes the agent to act on its behalf. 

However, agents must be the actual employer of the beneficiary, the representative of both the employer and the beneficiary, or a person or entity authorized by the employer to act for, or in place of, the employer as their agent.

Even then, agents are accountable to the following conditions when filing a petition:

1. An agent performing the function of an employer must provide the contractual agreement between the agent and the beneficiary, which specifies the wage offered and the other terms and conditions.
   
2. A person or company in business as an agent may file the petition involving multiple employers as the representative of both the employers and the beneficiary if the supporting documentation includes a complete itinerary of the event or events. The itinerary must specify the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishments, venues, or locations where the services will be performed. A contract between the employers and the beneficiary is required. The burden is on the agent to explain the terms and conditions of the employment and to provide any required documentation.
   
3. A contract between the employers and the beneficiary is required. However, an agent performing the function of an employer must provide a copy of the contract between itself and the nonimmigrant but will not be required to produce contracts between its clients and the alien.
   
4. A foreign employer who, through a United States agent, files a petition for an O-1 nonimmigrant is responsible for complying with all of the applicable employer sanctions.

Petitions Require Consultations

To continue the process, petitioners must consult with an appropriate peer group, labor, or management organization regarding the proposed work and the beneficiary’s qualifications. For O-1 consultations for aliens of extraordinary achievement in motion picture or television, consultations from both a labor consultation and management organization are necessary. The petitioner must submit the required consultation(s) with the petition or show that an appropriate peer group, labor organization, or management organization does not exist. 

“Peer Group” can include a person or persons with expertise in the beneficiary’s field. Although the petitioner can submit an advisory opinion from a non-labor organization (except for aliens in the motion picture or television industry), USCIS will still request a labor consultation. 

USCIS will forward a copy of the petition and supporting documentation to the national office of the appropriate union or the appropriate bargaining representative if there is one. This can delay the petition’s processing, so it is crucial to obtain and submit a labor consultation with the petition. 

If the advisory opinion doesn’t align with the petitioner’s view, the advisory opinion will offer a specific statement explaining how such a conclusion was reached. If the advisory opinion is favorable to the petitioner, it will describe the alien’s ability and achievements in the field of endeavor and state whether those achievements are that of an alien of extraordinary ability. 

A consulting organization may also submit a letter of “no objection” in place of the above if it has no objection to the petition’s approval. The requirement of a consultation may be waived if the beneficiary is an alien of extraordinary ability in the field of arts and is seeking entry under O-1 within two years of a previous consultation.

Expediting an O-1 Petition 

In some cases, when the nonimmigrant will be employed in the field of arts, entertainment, or athletics, and USCIS has determined that petition meets all necessary qualifications, the petition’s completion can be expedited. 

For expeditious handling, USCIS contacts the appropriate labor and/or management organization and requests an advisory opinion if one is not submitted by the petitioner. The labor and/or management organization has 24 hours to respond to the request. 

USCIS will then make a formal judgment of the petition after receipt of the response from the consulting organization. The labor and/or management organization shall then supply USCIS with a written advisory opinion within five days of the initiating request. If the labor and/or management organization fails to respond within 24 hours, USCIS will decide on the petition without the advisory opinion.

Understanding Dual Intent

O-1 aliens are essentially allowed by law to have “dual intent.” What is dual intent exactly? In the context of O-1 visas, dual intent allows foreign nationals the right to enter the United States as a nonimmigrant but still have the option of applying for a green card or permanent residence in the future. 

O-1 aliens may begin the first steps of a permanent residence application without fear of negatively affecting an O-1 visa application. However, it is recommended that all prospective O-1 aliens discuss intents to travel with an attorney. 

How Strikes Affect O-1 Petitions

All O-1 category visas are subject to “strikebreaker” provisions. This means that if the prospective O-1 status alien is involved in, or the alien’s place of employment is involved in, a strike or labor dispute leading to work stoppage that adversely affects wages and working conditions of U.S. citizens and permanent residents, the O-1 visa petition will be denied. 

How Long Do O-1 Visas Last?

A period of stay for O-1 nonimmigrants can vary. An O-1 visa duration is usually determined by the time necessary to complete the event, activity, or group of events for which the nonimmigrant has been admitted. However, the maximum amount of time authorized on any O-1 visa is generally three years. 

USCIS will determine the time needed to accomplish said events or activities in increments of up to one year. O-1 nonimmigrants are only allowed to work within a validity period, meaning the time during which a visa can be used. For example, an O-1 nonimmigrant may be admitted into the United States for the validity period of the petition, plus up to 10 days before and after the validity period begins and ends.

Determining Employer Liability 

If the O-1 nonimmigrant is terminated from the qualifying employment for reasons other than voluntary resignation, the employer and petitioner (if different) are both liable for the cost of return to the nonimmigrant’s last place of residence. This is not true for nonimmigrants who entered the United States under a different visa category and later adjusted to O-1 status. 

Dependents of O-1 Recipients

Unmarried minor children and spouses of O-1 employees are eligible for O-3 status, making them dependents of O-1 recipients. When entering the United States, O-1 dependents are subject to the same period of admission and limitations as the nonimmigrant beneficiary. When children of O-1 nonimmigrants turn 21, they are no longer entitled to O-3 status. At that point, the child must change nonimmigrant visa status to be able to legally stay in the U.S. Neither the spouse nor children of O-1 nonimmigrants can legally accept employment unless separately granted employment authorization.