O-1 Visa

The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.

 

Who can apply for the O-1 visa? 

O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry)

O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry

 

What are the Advantages and Limitations of an O-1 visa?

The O-1 visa offers an initial period of stay of three years, but may be renewed indefinitely, for as long as the worker is needed. 

 

Unlike H-1B visa, there is no limitation on number of O-1 visas available annually. 

 

O-1 visa is also considered a “dual intent” visa, though it is not a complete “dual intent” visa like H-1B visa or L visa. You may have immigrant visa petitions (green card) pending, and still have no problem in applying for O-1 extensions. 

Additionally, O-1 status may also be considered a path to a green card since the criteria are similar to EB-1A Aliens of Extraordinary Ability self-petitions. EB-1 is the fastest route to a green card in employment based immigration petitions. 

 

Another important advantage of O-1 visa is that it is a viable option for aliens subject to the two-year foreign residency requirement of the J-1 exchange visitor program and cannot obtain a J-1 waiver. People who hold or have held J-1 or J-2 status are not permitted to obtain H-1B or L-1 visa status until they and or the primary J-1 status holder has spent two years in his/her home country after the expiration of the J-1 status, or a waiver of the two-year residency requirement is satisfied. These aliens may obtain O-1 status without fulfilling the two-year residency requirement or getting a waiver of the requirement.  

 

A limitation of O-1 visa is that your dependents, which would be in the U.S. on O-3 status, are unable to obtain work authorization. Further, the O-1 visa holder cannot change jobs without applying for a new visa.


What is the difference in dual intent for O-1 and H-1B?

DHS has determined that the approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an O-1 or O-3 petition, a request to extend such a petition, or the alien’s application for admission, change of status, or extension of stay.  The alien may legitimately come to the United States for a temporary period as an O-1 or O-3 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.

 

Although the doctrine of dual intent is recognized for both O-1 and H-1B nonimmigrants on the question of labor certifications or immigrant petitions, O-1 nonimmigrants do not enjoy the same treatment after an application for adjustment of status (Form I-485) is filed:

 

An H-1B applicant for adjustment of status who wishes to travel outside the United States and reenter while the I-485 is pending can elect to travel either as an H-1B, or on the basis of advance parole.

 

Although an O-1 applicant for adjustment of status can continue in O-1 status while an application for adjustment of status is pending (including filing for extension of O-1 stay when necessary), an O-1 adjustment applicant who wishes to travel outside the United States and reenter while the I-485 is pending must, like all adjustment applicants except H-1B and L, obtain advance parole before departing, or else the adjustment application will be considered abandoned. Reentering on advance parole (i.e. as an advance parolee) would also require the alien to have an EAD card in order to continue working for the employer while the adjustment application is pending.

Does O-1 visa need sponsorship from a U.S. employer?

Yes, a job offer from a U.S. employer is a basic requirement for the O-1 visa. The O-1 visa is filed by the employer, along with the evidence of the individual’s extraordinary ability.

 

What are the evidentiary criteria for O-1A?

To meet the O-1A visa standards, the applicant must be able to show extraordinary ability and receipt of sustained national or international acclaim for it. This can be demonstrated if the person has gotten a major internationally recognized award, such as an Olympic medal or a Pulitzer Prize, or has accomplished at least three of the following:

 

  • 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 the field for which classification is sought

  • Original scientific, scholarly, or business-related contributions of major significance in the field

  • Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought

  • 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 in a field of specialization allied to that field for which classification is sought

  • Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation

If the above criteria do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence in order to establish the beneficiary’s eligibility.

 

What are the evidentiary criteria for O-1B?

For O-1B applicant, he or she must be recognized as prominent in the field of endeavor. To demonstrate such recognition, the applicant will need to supply documents showing that he or she has been nominated for or have received significant national or international awards or prizes in the particular field, such as an Oscar, Emmy, Grammy, or Director’s Guild Award. Alternately, the employer filing the petition can submit at least three of the following forms of documentation:  

 

  • 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 in which the beneficiary is engaged, with the testimonials clearly indicating the author's authority, expertise and knowledge of the beneficiary's achievements

  • A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence

 

If the above standards do not readily apply to the beneficiary’s occupation in the arts, the petitioner may submit comparable evidence in order to establish eligibility (this exception does not apply to the motion picture or television industry).

© 2019 by Law Office of Lu & Associates.