O-1 Visa – Workers with Extraordinary Ability
Purpose of the O-1 Visa Classification
The O-1 Extraordinary Worker Visa classification provides non-immigrant workers with extraordinary abilities in the fields of Science, Education, Business, Athletics, Arts, or in Motion Picture and Television Productions the opportunity to work temporarily in the U.S. in their particular area of specialization.
Prior to the existence of the O-1 Visa classification, non-immigrant workers of extraordinary ability were admissible as H-1B temporary workers. Unlike the H-1B Visa classification, the O-1 Visa classification is not subject to any numerical limitations.
Also, unlike the H-1B Visa classification, a labor condition application does not need to be filed in a petition for an O-1 Visa.
An O-1 Extraordinary Worker must be coming to the U.S. to work in his or her field of expertise. However, the position itself does not have to require a worker of extraordinary abilities.
- Very high standards must be met to prove that worker has qualifying extraordinary ability in field.
- Generally, most O-1 Extraordinary Worker Visa petitions require a written advisory opinion describing the O-1 worker’s abilities.
- O-1 Extraordinary Worker Visa petitions may only be filed by a U.S. employer or a U.S. agent. A non-immigrant worker may not self-petition for an O visa.
- The spouse and unmarried minor children of an O-Visa Worker are entitled to an O-3 Visa classification, subject to the same period of admission and limitations as the O-Visa Worker.
- Neither the spouse nor the minor children may accept employment unless granted employment authorization.
Points of Interest
If an O-1 Visa Worker is terminated, the U.S. employer and / or the U.S. agent can be liable for the costs of the O-1 Worker’s transportation home.
1. Definition of O-1 Visa: Worker with Extraordinary Ability
The Immigration and Nationality Act (INA) and immigration regulations provide three categories of O-1 Extraordinary Worker Visas. A non-immigrant worker may apply for an O-1 Visa to perform services in: (a) the Sciences, Education, Business, or Athletics; (b) the Arts; or (c) Motion Picture and Television Productions. To qualify for an O-1 Visa, a non-immigrant worker must meet very high standards.
The O-1 Extraordinary Worker Visa in the Sciences, Education, Business, or Athletics requires:
- Extraordinary Ability in the sciences, education, business, or athletics;
- Sustained national or international acclaim; and
- Temporary work in the U.S. in the area of extraordinary ability.
The O-1 Extraordinary Worker Visa in the Arts requires:
- Extraordinary Ability in the arts;
- Sustained national or international acclaim; and
- Temporary work in the U.S. in the arts.
The O-1 Extraordinary Worker Visa in Motion Picture and Television Productions requires:
- A demonstrated record of Extraordinary Achievement in motion picture and television productions;
- Recognition in the field; and
- Temporary work in the U.S. in motion picture and television productions.
The INA also provides an O-2 Visa classification for non-immigrant workers who accompany and assist O-1 Extraordinary Workers in artistic or athletic performances.
2. Procedure for O-1 Extraordinary Worker Visa Status
- Petition with CIS for O-1 Extraordinary Worker Visa.
- A written advisory opinion from a consulting entity regarding the nature of the work to be done and the O-1 Extraordinary Worker’s qualifications.
- Application to United States Consulate for O-1 Extraordinary Worker Visa.
- Inspection at a U.S. Port of Entry.
3. Step One: Filing a Petition with CIS
The U.S. employer of an O-1 Extraordinary Worker, or the employer’s U.S. agent, must first file a petition on Form I-129, Petition for a Non-immigrant Worker, with the CIS Service Center hat has jurisdiction over the O-1 Extraordinary Worker’s place of employment.
General requirements for an O-1 Visa – Extraordinary Worker petition:
- The petition may not be filed more than 6 months before the actual need for the O-1 Extraordinary Worker’s services.
- Only one beneficiary may be included on an O-1 Visa petition.
- O-2 Visa Non-immigrants must be filed for on a separate petition from the O-1 Extraordinary Worker.
- Petitions for O-1 and O-2 Visas may only be filed by a U.S. employer or a U.S. agent. A non-immigrant may not submit an O Visa petition for himself or herself.
Petitions for O-1 Extraordinary Worker Visas must be accompanied by the following:
- Specific evidence to support the particular O-1 Extraordinary Worker Visa classification.
- Copies of any written contracts between the employer and the O-1 Extraordinary Worker or, if there is no written contract, a summary of the terms of employment;
- An explanation of the nature of the events the O-1 Extraordinary Worker will participate in or of the worker’s activities;
- The beginning and ending dates for the events or activities;
- A copy of any itinerary for the events or activities; and
- A written advisory opinion from the appropriate consulting entity.
- Written Advisory Opinion.
Before a petition for an O-1 Extraordinary Worker Visa can be approved, the employer must obtain a written advisory opinion from an appropriate U.S. Peer Group or from a labor / management organization regarding the nature of the work to be done and the O-1 Extraordinary Worker’s qualifications. The advisory opinion must then be submitted with the petition for an O-1 Extraordinary Worker Visa. There is one exception to this rule where the worker will be employed in the field of arts, entertainment, or athletics, and the petition merits expeditious handling.
In order to obtain an O-1 Extraordinary Worker Visa in the Sciences, Education, Business, or Athletics, or an O-1 Extraordinary Worker Visa in the Arts, the written advisory opinion must be obtained from a Peer Group in the area of the worker’s field, or from a person with expertise in the area of the worker’s field. A Peer Group is a group or organization that is comprised of practitioners in the area of the worker’s field.
In order to obtain an O-1 Extraordinary Worker Visa in Motion Picture and Television Productions, the written advisory opinion must be obtained from the appropriate union and a management organization in the area of the worker’s ability.
Approval, Validity and Appeal of the Petition.
- If the CIS Service Center approves the O-1 Extraordinary Worker Visa petition it will notify the employer of the approval on Form I-797, Notice of Action. The approval notice will include the O-1 worker’s name, the classification, and the petition’s period of validity. The petition will generally be valid for the period of time necessary to complete the event or activity. However, the petition’s validity may not to exceed a period of 3 years. In the event a petition is denied, an employer may seek an appeal.
4. Step Two: Inspection by a United States Consulate
The worker then applies for an O-1 Visa by submitting an application to a United States consulate in the worker’s home country.
Basic application package for a nonimmigrant visa:
- Form DS-160, Nonimmigrant Visa Application;
- A valid, unexpired passport;
- Passport-type photograph; and
- Application fee.
If the consulate is satisfied that the worker qualifies for an O-1 Extraordinary Worker Visa and the consulate has received the O-1 worker’s petition, he or she may approve the visa application and will place an O-1 Extraordinary Worker Visa in the worker’s passport. Once a visa is issued, the worker may travel to the United States.
5. Step Three: Inspection at a U.S. Port of Entry and Admission
Admission of O-1 Extraordinary Worker. 8 C.F.R. § 214.2 (o) (10).
If the O-1 visa is granted, the O-1 Extraordinary Worker may be admitted to the United States by an immigration officer at a U.S. port of entry. An O-1 Extraordinary Worker may be admitted to the U.S. for the validity period of his or her petition, which may not exceed 3 years. The O-1 Extraordinary Worker will also have an additional period of up to 10 days before the validity period begins and 10 days after the validity period ends. However, the O-1 Worker may only engage in employment during the validity period of his or her petition.
Extension of O-1 Extraordinary Worker Visa Petition and Stay. C.F.R. § 214.2 (o) (11) and (12).
- To obtain an extension for the purpose of completing or continuing the activity or event specified in the original petition, the employer must file both a request to extend the validity of the O-1 Extraordinary Worker’s original petition, and a request to extend the O-1 Extraordinary Worker’s period of stay.
- The employer requests an extension of the O-1 Extraordinary Worker’s stay to continue or complete the same event or activity by filing Form I-129, accompanied by a statement explaining the reasons for the extension. The O-1 Extraordinary Worker must be physically present in the United States at the time of filing of the extension of stay.
- The CIS Service Center will notify the employer if the extension is approved using Form I-797. An extension of stay may be authorized in increments of up to 1 year plus an additional 10 days to allow the O-1 Extraordinary Worker to get his or her personal affairs in order. A denial of a request for an extension may not be appealed.
6. Helpful Advice for Employers and O-1 Extraordinary Workers
Doctrine of dual intent. A foreign worker may legitimately come to the United States for a temporary period as an O-Visa Worker and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.
Although it is impermissible for a worker to self-petition for an O Visa, self-employed workers are still eligible for the O Visa classification. In such a case, an established U.S. agent may file an O Visa petition in lieu of an employer.
In certain situations, a written advisory opinion need not be obtained. If the consultation organization does not object to the O Visa, it may submit a letter of no objection instead.
When an O-1 Visa worker will perform services for more than one employer within the same time period, each employer must file a separate petition with CIS. This situation may be avoided if there is a U.S. agent, because a U.S. agent may file a petition that covers work with multi-employers.
The employer must file an amended petition if there any changes in the terms and conditions in the employment of the O-1 Visa Worker that may affect the worker’s eligibility for an O-1 Visa.
7. More Information on O-1 Visas
- Requirements for Agents and Sponsors Filing as Petitioners for the O and P Visa Classifications
- Clarifying Guidance on “O” Petition Validity Period Revisions to the Adjudicator’s Field Manual (AFM) Chapter 33.4(e)(2) AFM Update AD10-36 July 20, 2010
- Address Index for I-129 O & P Consultation Letters
- Listening Session on O Nonimmigrant Classifications
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