O visas: For “O”utstanding achievement or individuals with extra“O”rdinary ability

In certain cases, it is advantageous to apply for an O-1 visa rather than for another nonimmigrant employment-based visa

Individuals with “extraordinary ability” in the sciences, arts, education, business, or athletics, or who have a demonstrated record of extraordinary achievement in the motion picture or television industry should apply for O-1 nonimmigrant visas. The O nonimmigrant visa classifications are:

  • O-1A: Individuals with an extraordinary ability in the sciences, education, business, or athletics
  • 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. The O-2’s assistance must be an “integral part” of the O-1A’s activity while the O-2’s assistance must be “essential” to the completion of the O-1B’s production. Generally, the O-2 worker has “critical skills and experience” with the O-1 alien that are not of a general nature and that cannot be readily performed by a U.S. worker
  • O-3: Individuals who are the spouse or children of O-1’s and O-2’s

To qualify for an O-1 visa, the alien must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the U.S. to continue work in the area of extraordinary ability. “Extraordinary ability” in the fields of science, education, business, or athletics means a level of expertise that establishes that the person is one of the small percentage who has risen to the very top of the field. “Extraordinary ability” in the field of arts means distinction, including a high level of achievement in the field of the arts as demonstrated by a degree of skill and recognition substantially above that which is ordinarily encountered (i.e., someone who is described as prominent, renowned, leading, or well-known in the field of arts). To qualify for an O-visa in the motion picture or television industry, the alien must demonstrate “extraordinary achievement” as evidenced by a degree of skill and recognition that is significantly above that which is ordinarily encountered (i.e., a person who is recognized as outstanding, notable, or leading in the motion picture and/or television field).

Employers should file a Form I-129 for the alien beneficiary at least 45 days before the date the employment begins. The following should accompany the Form I-129: (1) the requisite supporting documentation that establishes that the alien qualifies as an alien of extraordinary ability or extraordinary achievement; (2) a written advisory opinion from a peer group or person designated by the group with expertise in the alien’s area of ability (although, in certain cases, this requirement can be waived or met by evidence that such an opinion is not available); (3) a copy of any written contract between the employer and the alien or a summary of the terms of the oral agreement under which the alien will be employed; and (4) an itinerary or explanation of the nature of the events or activities, including the beginning and ending dates for the events and activities, and an explanation that establishes the events or activities are in the alien’s field of extraordinary ability for the requested validity period of the visa.   

The duration of O-1 visa is determined by the length of time that the alien will need to perform his duties or activities for the employer. Usually, O-1 visas are granted for an initial three year period, provided the petition establishes that the O-1 alien will need this amount of time to complete the employment. Thereafter, the period can be extended in one year increments upon a showing that the alien’s continued presence is required. There is no legal limit to the amount of time an alien can remain in the U.S. in O-1 status.

In certain cases, depending on the alien’s qualifications, it is advantageous to apply for an O-1 visa rather than for another nonimmigrant employment-based visa, like an H-1B visa. Unlike H-1B visas, which are subject to an annual cap that is quickly met, O-1 visas are not subject to any annual quota. Instead, O-1 visas are readily available to those who meet the qualification criteria. As a result of its year-round availability, an alien who otherwise may qualify for an H-1B visa may elect to apply for an O-1 visa, especially if the H-1B quota for the year has already been exhausted. Furthermore, O-1 visas may be extended more liberally than H-1B visas. An H-1B visa is initially available for a period of three years, with options to extend it for two years thereafter and, occasionally, an additional year beyond that, for a total period of six years. Comparatively, the O-1 visa is granted for an initial period of up to three years with options to extend status in increments of one year. In certain scenarios, an alien’s O-1 status could be extended indefinitely, as long as the USCIS finds it necessary for the alien to continue to perform the specific activity for his employer.  

Contributing Author

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Tina M. Maiolo

A member of Carr Maloney, P.C., Tina Maiolo partners with clients to operate and grow their businesses. She focuses her legal practice in...

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Contributing Author

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Suzanne E. Derr

Suzanne Derr of Carr Maloney focuses her practice on civil litigation, including matters of products liability, professional liability, and premises liability.

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