foreigners with extraordinary ability: the o-1 visa

The O-1 Visa allows foreign nationals with extraordinary abilities in the sciences, arts, education, business or athletics to lawfully work and live in the U.S. for a period of time. If you have achieved and maintained an impressive national or international reputation in your field, you may be eligible for an O-1 visa based on your acclaim. 
O-1 visas are available to qualifying individuals of many different talents and professions. The O-1A visa is for individuals with extraordinary ability in the sciences, education, business or athletics. This could include professors, lecturers, scientists, basketball players, or executives of banks or gaming companies. The O-1B visa is reserved for individuals with extraordinary ability in the arts or in the motion picture or television industry. This category encompasses a range of talented individuals in various artistic fields, including visual artists, musicians, dancers, hair stylists, fashion designers, singers, actors, photographers, and many others.
To qualify for an O-1 visa, an individual must not be a “legend in their own mind,” but must have a demonstrated record of achievements in his/her field. In order to be eligible for an O-1 visa in the fields of science, education, business or athletics, it must be shown that the individual is one of a small percentage of people who has risen to the very top of his/her field of endeavor. In the field of arts, the individual must show distinction, meaning that s/he has reached a high level of achievement in the field of arts, demonstrated by a high degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.
An application for an O-1 visa must include the requisite forms from U.S. Citizenship and Immigration Services, extensive documentation showing that the individual has met the required standards, and a written advisory opinion from a peer group (or labor organization) or a person designated by the group with expertise in the individual’s area of ability. Some fields do not have appropriate peer groups, so this must be acknowledged and the O-1 petition will be based and judged on the evidence that is included. 
An O-1 applicant may not apply on his or her behalf. S/he must have an employer seeking to hire him/her, or a third party agent designated to petition for him/her and act as the link between the applicant and his/her prospective employers in the U.S. If the individual seeks to work in the U.S. for a specific employer, that employer may submit the O-1 petition on the individual’s behalf. Alternatively, an individual may designate an agent who represents him/her in his/her field of endeavor in place of a traditional employer. The agent may represent the individual in events or engagements with multiple employers (i.e. a painter working for multiple art galleries, or an actor with several different confirmed plays in which he will perform in the next two years). 
Either way, the individual must show that s/he has received an offer of employment (or multiple offers) for the period of time that s/he is requesting to be approved for an O-1 visa. An itinerary must be included explaining the nature of events and activities, including the period of time for each (i.e. itinerary for a tour or a series of art gallery exhibitions). Contracts must be submitted with the O-1 petition, evidencing the terms of the agreement with each employer (or one employer), including the time period of employment. The employment must be within the individual’s field of expertise. If the petitioner is an agent, a contractual agreement between the individual and the agent must be submitted, along with an itinerary of upcoming events or engagements. An individual’s first O-1 visa may be approved for a period of up to three years, if the itinerary or contract shows that s/he has engagements or confirmed employment for that full period. Extensions of O-1 status are available in one year increments. 
U.S. immigration laws require O-1 applicants to demonstrate that they fulfill at least three of the delineated regulatory criteria.
 For an O-1A visa (for individuals with extraordinary ability in the sciences, education, business or athletics), the regulatory criteria are as follows: 
  • Receipt of 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, as judged by recognized national or international experts in the field
  • Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in his/her field
  • Authorship of scholarly articles in professional journals or other major media in the field
  • A high salary or other remuneration for services as evidenced by contracts or other reliable evidence
  • Participation on a panel or individually as a judge of the work of others in the same or similar field
  • Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.
For an O-1B visa (extraordinary ability in the arts or motion picture or television industry), the individual must produce evidence that he/she has received or has been nominated for significant national or international awards or prizes in his/her field, such as an Academy Award, Emmy or Grammy, or evidence of at least three of the following: 
  • Performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements. 
  • Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications 
  • Performed and will perform in a lead, starring or critical role for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials
  • A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings, and other occupational achievements reported in trade journals, major newspapers or other publications 
  • Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field, with the testimonials clearly indicating the author’s authority, expertise and knowledge of the individual’s achievements 
  • A high salary of other substantial remuneration for services in relation to others in the field
Other comparable evidence may also be used if the above standards do not readily apply to the individual’s occupation in the arts. 
Bringing Accompanists/Assistants and Family Members to the U.S.:
If an O-1 artist or athlete requires the assistance of another person (or persons) to accompany him/her for a specific event or series of events, that person may be eligible for an O-2 visa, if the accompanist/assistant is an integral part of the events (O-1A) or is essential to the production of the event (O-1B). The O-2 visa is only available if this worker has critical skills and experience with the O-1 applicant that cannot be readily performed by a U.S. worker. Specific documentation must be submitted to demonstrate the requirements for an O-2 visa. 
Spouses and minor children of O-1 visa holders may be eligible for O-3 visas. An O-3 visa may be approved for the same period of time as the O-1. O-3 visa holders are not authorized to work in the U.S., but are allowed to engage in full or part-time study in the U.S. while in O-3 status. 
As with all immigration matters, it is best to consult with an immigration attorney to ensure you are properly navigating the complicated waters of the U.S. immigration system.  Please contact Managing Partner Michael Wildes at michael@wildeslaw.com with any questions you may have.

For Further Information On How We Can Help Your Firm Meet Its Employment Eligibility Verification Obligations, Please Contact Amy Wildes At amy@wildeslaw.com

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