Moore & Van Allen Law Firm, Attorneys

O 1: EXTRAORDINARY ABILITY

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O 1: EXTRAORDINARY ABILITY

The O‑1 nonimmigrant visa category provides for the temporary employment for applicants who have “extraordinary ability” in the sciences, arts, education, business or athletics, or who have a demonstrated record of extraordinary achievement in the motion picture or television industry. Extraordinary ability has been defined by the U.S. Citizenship and Immigration Services (the “CIS”) to mean a level of expertise indicating that the alien is one of the small percentage who have risen to the very top of the field of endeavor. The O-1A visa is specifically for individuals in sciences, education, business or athletics and the O-1B visa is for individuals in the arts, including motion pictures and television.

There is also an O-2 visa category for supporting and essential personnel accompanying the O-1 worker to the U.S. to assist in the work being performed. For example, an O-1B musical performer coming to the U.S. for a tour may have a large crew that assists in the execution of the performances. To qualify for the O-2, supporting personnel must have an established work relationship with the O-1 applicant.

The O visa requires a U.S. petitioner, such as a U.S. company or an agent. It is not possible to “self-petition” for an O visa; the petition requires sponsorship by a U.S. entity. The evidentiary thresholds for O‑1A and O-1B status are extensive. Some of the types of evidence USCIS requires to show that an applicant is “extraordinary” include:

  • Evidence that the applicant has received a nationally or internationally recognized prize or award for excellence in the field of endeavor.
  • Articles in professional or major trade publications or major media about the applicant.
  • Evidence that the applicant has written scholarly articles or publications.
  • Evidence that the applicant has made original scientific, scholarly, or business-related contributions of major significance in the field.

In addition to the evidentiary criteria, there is a consultation requirement for O petitions. Applicants in fields in which a labor union or peer group is standard (such as the film and television industries) will be required to obtain a consultation from the appropriate union or group, confirming the applicant holds an exceptional level or skill and that the union or group has no objection to the O-1 petition. O-1 applicants in fields that do not have a standard labor union or group, such as a scientific researcher or business executive, may submit letters of testimony from peers in the industry attesting to their qualifications in lieu of a consultation.

The O-1A/O-1B petition process requires filing an I-129 Nonimmigrant Worker Petition with the appropriate USCIS Service Center. With the I-129, documents must be submitted to substantiate that applicant meets the evidentiary criteria such as evidence of awards and accomplishments. O-2 essential support personnel require a separate I-129 petition, however multiple applicants may be included on the petition and the petition may be filed concurrently with the O-1 filing.

Processing times vary depending upon the Service’s caseload, but it generally takes several months for a petition to be adjudicated. For petitioners seeking an expedited adjudication, premium 15-day processing may be requested for an additional fee of $1225.00.

Upon approval, if the applicant is outside the U.S., s/he can then apply for the O-1 or O-2 visa at the appropriate U.S. Consulate. If the applicant is in the U.S. (either in another valid visa status or seeking an extension of status), an approval notice showing the change or extension of nonimmigrant status will be issued. 

The O visa potentially allows for an indefinite duration of authorized stay in the U.S. An O petition can be approved for a maximum initial period of stay of 3 years, and an extension of stay may be authorized in increments of no more than 1 year. The visas themselves are usually issued for a period of three years or less. As there is no statutory limitation on the number of years an applicant may hold O-1 status, the visa and status may be renewed for similar terms indefinitely so long as conditions of eligibility continue to be met.

Family members of O-1 workers (spouses and children under age 21) may be granted O-3 visa status to accompany the O-1 worker to the U.S. O-3 dependents are not eligible to work in the U.S.