O-1 Status is a non-immigrant status category for aliens of extraordinary ability in the sciences, arts (including the television and motion picture industry), education, business, or athletics. This is an employment related status that allows qualified aliens to live and work in the United States. O-1 petitions may only be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent on behalf of the beneficiary. The O-1 visa is a dual intent visa, meaning that the beneficiary may simultaneously seek permanent resident status while in the U.S. on O-1 without worrying about preconceived intent issues.
There are several different types of visas in the O category:
- 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 the extraordinary achievement in the motion picture or television industry.
- O-2- Individuals who will accompany an O-1 individual to assist in a specific event or performance.
- O-3- Individuals who are the spouse or children of O-1s and O-2s.
The initial period of stay for O status is up to 3 years. An approved O petition will have a validity period commencing with the date of approval and ending with the date requested by the petitioner. This date is not to exceed the date which USCIS has determined to be necessary to complete the work-related event or activity the alien is in the United States to do. Again, this time period will not exceed 3 years and may certainly be less than that. Any requests for extensions of stay will be considered by USCIS and, once they have determined the time necessary to accomplish the initial event or activity, will be granted in increments of up to 1 year.
Under what circumstances may an O-1 Visa be sought?
As discussed above, O status can be sought by an employer in the US for an alien when a work related event or group of activities require he or she to travel to the United States on a temporary basis. The Code of Federal Regulations defines a qualifying event as “an activity such as, but not limited to, a scientific project, conference, convention, lecture, series, tour, exhibit, business project, academic year, or engagement.”
In addition, a job which may not have a specific engagement or project that exactly fits the above definition may also count, if the job is the “activity” within the alien’s area of extraordinary ability. Activities such as these may include short vacations, promotional appearances, and stopovers which are incidental and/or related to the event.
Benefits of an O Visa
O-1 status is distinguished from other employment related statuses in that it applies to more types of work than other visa categories, such as H or L. For example, H-1B status is limited to professionals and cannot apply to athletes or entertainers as can O-1 status. In addition, in our experience, many seeking non-immigrant status after the H-1B quota for that fiscal year has already been reached will apply for O-1 status, if they qualify. One of the benefits of the O visa is that it does not have an annual quota.
Another important benefit of O-1 status is that it is a viable status to seek for aliens subject to the two-year foreign residency requirement of the J-1 exchange visitor program. Many peoplewho hold or have held J-1 or J-2 status are not permitted to obtain an H or L visa status until they and/or the primary J-1 status holder has spent two years in their home country after the expiration of the J-1 status or a waiver of the two-year residency requirement is obtained. These individuals may obtain O status without fulfilling the two-year residency requirement or getting a waiver of the requirement. In such cases however, the alien may not change status to O-1 in the United States, but must obtain an O-1 visa either in the home country after their O-1 application is approved by the USCIS.
Qualifications for O-1 status vary depending on the area of work, e.g., arts, sciences, etc.
For Aliens in the sciences, education, business, and athletics. For these fields, the alien must show that he/she is in the top of his respective field. This can be established through evidence of receipt of a major, internationally recognized award such as a Nobel Prize. In absence of such an award one can establish himself as a qualifying alien through at least three of the following types of evidence:
- Documentation of receipt of lesser nationally (not necessarily U.S.) or internationally recognized prizes or awards for excellence in the field of endeavor;
- Documentation of membership in associations in the field of endeavor which require outstanding achievements of their members, as judged by recognized national or international experts in their fields;
- Published material in professional or major trade publication or in the major media about the alien and relating to the alien’s work in the field of endeavor;
- Evidence of participation as a judge (individually or as a part of a panel) of the work of others in the alien’s field;
- Evidence of scientific, scholarly, or business related contributions of major significance in the field of endeavor;
- Evidence of authorship of scholarly articles in the field, in professional journals or other major media;
- Evidence of performance in a critical or essential capacity for organizations or establishments with distinguished reputations;
- Evidence of having commanded a high salary or other significantly high remuneration for services in relation to others; and
Other comparable evidence
For Aliens in the arts, motion pictures, or television.
For the arts, the alien must show that he has acquired “distinction” in his artistic field.
“Distinction” means a high level of achievement as evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that the person is described as prominent, leading, or well-known in the field of arts:
Persons in the motion picture or television industry must show a very high level of accomplishment evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent that the person is recognized as outstanding, notable, or leading in the industry.
Under these standards the requirements under the motion picture or television industry are somewhat higher than those for the arts. In either case, the forms of evidence to be used to establish the qualification are the same. The alien may establish qualification through evidence of nomination or receipt of a major, national or international recognized award such as an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award. In absence of such an award one can establish himself as a qualifying alien through at least three of the following types of evidence:
- Having been or will be performing a lead or starring role in productions or events which have a distinguished reputation (as evidenced by critical reviews, advertisements, press releases, publications contracts, or endorsements;
- Critical reviews or other published material in professional or major trade publication or in the major media by or about the alien which show that the alien has achieved national or international recognition or achievements;
- Evidence of performance in a lead, starring or critical role for organizations or establishments with distinguished reputations;
- Evidence of a record of major commercial or critically acclaimed successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.
- Evidence of significant recognition for achievements form organizations, government agencies, or other recognized experts in the field;
- Evidence of having commanded a high salary or other significantly high remuneration for services in relation to others; and
- Other comparable evidence.
It should be noted that the requirements for O-1 Status are very similar to those for the EB-1(A) (Alien of Extraordinary Ability) employment based permanent residence category. The difference is of course that the O-1 standards apply to those seeking a non-immigrant status, while the EB-1(A) standard are for those seeking permanent immigrant status.