Overview of U.S. Non-Immigrant O Visas
O Visas are one of the U.S. non-immigrant worker visas for people who possess extraordinary ability in the sciences, arts, education, business, or athletics, or who have demonstrated a record of exceptional achievement in the motion picture or television industry and have been recognized nationally or internationally for those achievements. Subcategories of the O-1 visa include O-1A, O-1B, O-2, and O-3. Although some requirements for this visa are similar to the EB-1 immigration category, the O-1 is a temporary worker visa with a duration previously agreed by the employer with the USCIS. Therefore, the O-1 does not allow permanent residence in the US.
How do I Obtain Any of the U.S. Non-Immigrant O Visas?
Before applying, you must identify which O visa is right for you. There are two main types of O visas: O-1A is for extraordinary individuals in the field of science, business, or athletics and O-1B is for individuals with an exceptional ability in the arts or extraordinary achievement in the motion picture or television industry. Once you have determined which O visa you should apply for, you must then find a sponsor to file the petition for you in the United States along with obtaining work (already contracted for) in the area you are extraordinary.
Evidentiary Qualifiers for U.S. Non-Immigrant O Visas
To qualify for an O-1 visa, the foreign national must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability.
Extraordinary ability in the fields of science, education, business, or athletics means a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor.
Extraordinary ability in the field of arts means distinction. Distinction means a high level of achievement in the field of the arts evidenced by a 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.
To qualify for an O-1 visa in the motion picture or television industry, the foreign national must demonstrate extraordinary achievement in motion picture and television productions, which means a very high level of accomplishment in the motion picture or television industry as evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable or leading in the motion picture and/or television field.
Certain family members of exchange visitors may also accompany the O-1 visa holder as dependents. An O visa holder may be accompanied or followed by spouses and unmarried children who are under 21 years of age. Spouses of O-1 visa holders cannot apply for work authorization.
Evidentiary Criteria for O-1A
Evidence that the foreign national has received a major, internationally-recognized award, such as a Nobel Prize, or evidence of at least (3) 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 or major media about the foreign national related to the foreign national’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 or that the foreign national will command 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 foreign national’s occupation, the petitioner may submit comparable evidence in order to establish the foreign national’s eligibility.
Evidentiary Criteria for O-1B
Evidence that the foreign national has received, or been nominated for, significant national or international awards or prizes in the particular field, such as an Academy Award, Emmy, Grammy, or Director’s Guild Award, or evidence of at least (3) three of the following:
- Performed and will perform services as a lead or starring participant in productions or events that 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 foreign national 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.
- Demonstrated 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 foreign national is engaged, with the testimonials indicating the author’s authority, expertise, and knowledge of the foreign national’s achievements
- Commanded a high salary or will command a high salary or other substantial remuneration for services about others in the field, as shown by contracts or other reliable evidence
If the above standards do not readily apply to the foreign national’s occupation in the arts, the petitioner may submit comparable evidence to establish eligibility (this comparable evidence exception does not apply to the motion picture or television industry).
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 that USCIS has determined to be necessary to complete the work-related event or activity the foreign national is in the United States to do. Again, this 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.
O-1 visa 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 an O-1 visa. In addition, 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 -1 isa is that it does not have an annual quota.
Another important benefit of the O-1 visa is that it is a viable status to seek for foreign nationals subject to the two-year foreign residency requirement of the J-1 exchange visitor program. Many people who 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 have 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 an O-1 visa without fulfilling the two-year residency requirement or getting a waiver of the requirement. In such cases however, the foreign national 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.