Select foreign nationals with extraordinary abilities in the arts, sciences, education, business, entertainment or athletics may qualify for an O-1 visa. The O-1 visa is not subject to an annual limit on approvals (no “cap”). In most cases, the O-1 visa requires sponsorship by a company, however, it can also be used by artists and entertainers (people who are traditionally self-employed) as long as an agent serves as a sponsor. There are three different standards for qualification for an O-1 visa, depending on the applicant’s area of expertise.
If the applicant’s expertise is in the sciences, education, business, or athletics, he/she must possess “extraordinary ability,” which means a level of expertise indicating that he/she is one of the small percentage who have arisen to the very top of the field of endeavor. The applicant must be able to document either:
- Receipt of a major, internationally recognized award, such as the Nobel Prize; OR
- At least three of the following:
- Receipt of a nationally or internationally recognized prizes or awards for excellence in the field of endeavor.
- 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.
- Published material in professional or major trade publications or major media about the alien, relating to the alien's work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation.
- Evidence of the alien's participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought.
- Evidence of the alien's original scientific, scholarly, or business-related contributions of major significance in the field.
- Authorship of scholarly articles in the field, in professional journals, or other major media.
- Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation.
- Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.
If the individual is applying as an expert in the motion pictures and television industry, he/she must demonstrate “extraordinary achievement” evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent that the applicant is recognized as outstanding, notable, or leading in the motion picture and/or television field.
If the individual is applying as an expert in the arts, he/she must demonstrate “distinction” evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that the applicant is renowned, leading, or well-known in the field.
All O-1 petitions must include extensive documentation of the aforementioned categories, as well as a consultation from the appropriate union or opinions from experts. The O-1 visa may be granted for an initial 3 year period and can be extended indefinitely in 1 year increments, unless the applicant can prove the occurrence of a “new event” which would entitle him/her to an additional 3 years in O-1 status. There is no legal limit to the amount of time a foreign national can remain in the US in O-1 status, and foreign nationals should be very careful if seeking US permanent resident (“green card”) status while on an O-1 visa.
Filing O-1 Petitions
A petition for O-1 status must first be filed with the US Citizenship and Immigration Services (USCIS) Regional Service Center no more than 6 months prior to the requested start date. An O-1 petition may take several months to be adjudicated, however, for an additional $1225 processing fee, USCIS will adjudicate the petition in 15 days.
O-3 visas are available to immediate family members (spouses and children under the age of 21) who are accompanying the employee to the US. O-3 visas are generally granted for the same period as the O-1 visa, and must be extended accordingly. Family members may attend school or university, but cannot work in the US in O-3 status.