Our guide to the O-1 visa for individuals with extraordinary ability or achievement is part of our guide to US visa types. Therefore, if you would like to learn more about the O-1 visa, please keep reading. We accordingly describe its ability to provide employment to exceptional workers. If you know need help in filing an O-1 visa application, please contact us. We can help you with an artist’s visa, a scientist visa or a business visa.
Why the O-1 Visa Exists
Congress designed the O-1 visa for people with extraordinary ability in sciences, arts, education, business or athletics. These highly skilled people could get authorization to work in the United States. Those skilled in the motion picture or television industry may also receive an O-1 visa. But, they are held to a higher standard, extraordinary achievement.
Defining Extraordinary Ability or Achievement in the Arts or Sciences
To qualify for an O-1 visa, the United States Citizenship and Immigration Services (USCIS) requires that the beneficiary prove extraordinary ability. You must show this ability through sustained national or international acclaim. This description makes it sound like you must have won a Nobel Prize or an Oscar. But that is not the case. For science, education, business or athletics, the USCIS will agree that you have extraordinary ability if you can show that you are at the top of your field. For these disciplines, many people would agree that objective criteria show who is the best, at the top of his field.
In the field of arts it is more difficult to establish who is at the top of a particular art. USCIS recognizes this and provides in the arts that the applicant shows distinction. An artist shows distinction when she has skill and recognition substantially above that ordinarily encountered in that particular art.
The television and motion picture industry were successful in lobbying for a higher standard. Rather than showing distinction, an artist in these fields must prove extraordinary achievement in his field.
Proving Extraordinary Ability, Distinction and Extraordinary Achievement
As described earlier, for all the categories above the USCIS will agree that you should receive an O-1 visa if you have received a major award such as the Nobel Prize. But for those that have not, the USCIS provides lists, one for the sciences and one for the arts. For the sciences, a scientist, teacher, business person or athlete who can show three of the following qualifies for O-1A status:
- You have received nationally or internationally recognized prizes or awards for excellence in the field of your endeavor.
- You are a member in associations which require outstanding achievements as judged by recognized national or international experts.
- You have published material in professional or major trade publications, newspapers or other major media about your work.
- You have made original scientific, scholarly or business-related contributions of major significance in the field.
- You have authored scholarly articles in professional journals or other major media in the field.
- You receive or will receive a high salary.
- You have participated on a panel or individually as the judge of the work of others.
- You are employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation.
For the arts, a major award such as an Academy award, Emmy or Grammy is enough for the USCIS. If you don’t have one of those, you can show distinction through at least three of the following:
- You performed or will perform as a leader or starring participant in productions or events which have a distinguished reputation.
- You have achieved national or international recognition for achievements as shown by critical reviews or publish materials about you in major newspapers, trade journals or other publications
- You perform all will perform in the lead, starring or critical role for organizations and establishments that have a distinguished reputation.
- You have a record of major commercial or critical acclaim success as evidenced by your standing in your field, economic recognition, or recognition by your peer group.
- You have received significant recognition for your achievements from organizations, critics or other recognized experts in your field.
- You’ve received a high salary or other substantial compensation for services in relation to others in your field.
As you might imagine, meeting the USCIS requirements by submitting evidence in these categories is a floor, not a ceiling. If you can submit evidence in more than three categories, you significantly improve your chances of success. An experienced immigration attorney can assist you in your pursuit of an O-1 visa by reviewing your resume and achievements with you against these list of criteria. Many times we can be creative in identifying evidence that the O-1 visa applicant can produce to be successful.
Again, USCIS regulations are flexible. They recognize the reality of exceptional workers in the sciences and art regarding the evidence that an applicant uses to support his case. While the USCIS sets forth these criteria, it provides that if the standards don’t apply, the applicant can submit any evidence that supports her request for O-1 status. As part of our service, we can help you identify all the evidence that supports your claim to extraordinary ability.
Consultation Requirement
The O-1 visa regulations specify an additional requirement if you are submitting an application in the athletics or arts. You must also provide a consultation from the appropriate labor organization. An even higher standard applies to applicants in motion pictures and television. Besides supplying a consultation with a labor organization, you must also include a consultation from a management organization.
As always, the USCIS does not require you to produce what does not exist. Therefore, if no appropriate labor organization exists in your field, you can note that fact in submitting the application.
We believe that it helps USCIS reach a favorable decision on your O-1 visa application if it includes a consultation. This consultation can be in the form of an opinion letter from someone skilled in your area. Alternatively, if a peer group exists in your field, even if it is not a labor organization, gaining an opinion letter that summarizes your expertise and places it in context helps the USCIS officer reviewing your application.
Other O-1 Visa Considerations
With a clear picture of what it takes to be successful with the O-1 visa, the type of evidence the USCIS requires to prove an application, we discuss other O-1 Visa considerations. Sometimes an applicant for an O-1 visa does not have an employer; she has an agent who is negotiating various appearances. USCIS regulations recognize this fact of the art world and allow agents as petitioners, even those outside of the United States.
If your expertise requires the help of someone who supports you in a critical capacity, the USCIS provides that this person may also petition for an O Visa. Rather than receiving an O-1 visa, if a support person can prove critical skills and essential support services, the USCIS will provide an O-2 visa.
The USCIS allows petitioners to request up to three years in O-1 status when filing. If the petitioner selects only a one-year period and finds that workers available past this initial one-year approval, the petitioner may request extension of the O-1 visa status.
USCIS O-1 visa regulations recognize the reality of life for artists and other performers. They provide that an O-1 visa beneficiary may have several concurrent O-1 visa approvals. So if the artist or performer is working with many employers rather than through an agent, he can file for O-1 status with each of these employers.
Another nice aspect about the O-1 visa is it permits dual intent. This means that you can be in the United States in O-1 status, and at the same time be actively seeking and working on obtaining lawful permanent residency a green card. If you plan this, please be sure to visit our guide to employment-based green cards.
To conclude other considerations, we address the O-1 visa approval rate. We think many people worry too much about this. If the approval rate is 50%, they think in terms of a 50% chance of success. The reality is that some people have 100% chance of success and others have 0%. The best way to get approval is to understand what you’re doing and the best evidence to support your application.
O-1 Visa or Status Time Considerations
An artist or performer may develop an opportunity for work in the United States on short notice. The USCIS provides that should allow at least 45 days from the time of submission of the application until approval. A review of the O-1 visa processing time shows 30 to 45 days. At the time we prepared this article, the California service Center is showing 47 days. An employer may request premium processing with an O-1 visa application. This reduces the time for approval to under 15 days.
If the employer or agent is filing well in advance of the need for the exceptional worker, the USCIS will not allow an application with the start date more than one year in the future.
How We Can Help
Our greatest help to a scientist, teacher, business person, artist, or performer who is seeking O-1 classification is our ability to analyze the applicant’s case for O-1 status. Not only can we review the evidence that an artist or scientist can produce today to support the O-1 application, we can also help the applicant think through more evidence that she could develop to support the application. We usually do this through our strategy consultation process. If you believe you qualify for O-1 visa status, please contact us so that we can help you. We can submit a successful O-1 visa application to the USCIS for you.
