Introduction
The US government offers many different types of visas for those who would like to come to the United States to work. The O-1 visa is designed for people who have demonstrated extraordinary ability and achievement in certain fields, and who intend to engage in that occupation while in the US. O-1 status offers quite a number of advantages that other employment-based visas lack.
Who is Eligible for O-1 Status?
The foundational qualification for O-1 status is a job offer from a U.S. employer that requires your presence in the United States. Beyond that, you must have demonstrated “extraordinary ability” in a scientific, artistic, educational, business, or athletic occupation. Quite frankly, it is not particularly easy to qualify as someone of extraordinary ability — you must have received national or even international acclaim in your field.
Although an NBA player, a Nobel Prize winner or an Oscar nominee would certainly be a good candidate for an O-1 visa, the amount of occupational acclaim that you need to qualify for O-1 status isn’t quite that exclusive — after all, the US has issued well over 10,000 O-1 visas per year for several years now.
O-1A vs O-1B Status
The O-1A category is for applicants involved in science, education, business or athletics, while the O-1B category is for applicants involved in the arts or in the motion picture or television industry.
Assistants, Managers, Family Members, Etc.
Assistants and other people who are essential to an O-1 visa applicant’s occupation can apply for an O-2 visa, while family members of O-1 and O-2 visa applicants can apply for an O-3 visa. Both visas are subject to certain qualifications and restrictions.
The Application Process
As the beneficiary (the person seeking O-1 status), you cannot file an application on your own. Instead, a sponsor must file the application on your behalf. The sponsor can be your employer, your agent (if you are a performing artist, for example), or an agent of your employer. The application process works like this:
- Start early, but not too early — you cannot file earlier than one year prior to your intended US entry date.
- The sponsor must complete and sign Form I-129, Petition for Non-Immigrant Worker and related I-129 supplements.
- Collect and organize the supporting documentation that is required (see below for details).
- Prepare the filing fee of $460 (as of April 2019) in the form of a business or personal check, money order or cashier’s check, payable to “Department of Homeland Security.”
- Send the application package to the appropriate USCIS Service Center.
- The USCIS will send a Receipt Notice This notice simply confirms that the USCIS received the application.
- The USCIS may issue a Request for Evidence at some point during processing. Although the USCIS does not send out an RFE for most applications, it is not at all uncommon and ii is not necessarily anything to worry about. You will need to respond promptly to whatever the USCIS is asking for, however.
- The USCIS will issue a written notice of its decision (approval or denial). If the application is approved, the USCIS will send an I-797 approval notice. This is a critical document, so don’t lose it.
Documentation
When it comes to applying for O-1 visa status, the devil’s in the details, as the old saying goes. Preparing the necessary documentation is the most difficult part of the entire visa application process for most people. One of the reasons for this is that the term “extraordinary ability” is inherently subjective, subject to the discretion of the examiner. This means that you must do everything you can to prepare as strong an application as possible.
The following documents must be filed with Form I-129:
1. A copy of your contract with your employer
Unless otherwise requested, you don’t have to provide the original (the one with your original signature). Believe it or not, the USCIS will even accept an oral contract, as long as you provide them with a written summary of its essential terms. In this case, it would be best if you at least provide copies of email exchanges between you and your employer discussing the terms of your contractual relationship.
2. A copy of your itineraries
You will need to inform the USCIS of the nature of your event or activity as well as the location and the beginning and ending dates. You will need to provide a separate itinerary for each event of activity that you engage in. These events or activities must be within your field of expertise.
3. Evidence of your extraordinary ability
This is the hard part. You will need proof that you either received a major internationally-recognized award in your field of expertise; or, alternatively, you will have to provide proof of at least three of the following.
For an O-1A Visa:
- Nationally or internationally recognized prizes or awards in your field.
- Membership in professional or occupational associations for which membership requires outstanding achievement (something equivalent to the National Academy of Sciences, for example) as judged by experts in the field..
- Publications in professional journals or distinguished trade publications or other major media about you and your work.
- Original and significant scientific, scholarly, or commercial contributions to your field.
- Scholarly articles in your field published in professional journals.
- A high level of compensation (salary or other remuneration).
- Participation as a judge in evaluating the work of other participants in your field or a similar field.
- Employment in an essential role for organizations with distinguished reputations.
For an O-1B Visa:
- You performed and will perform in lead or starring roles in productions with a distinguished reputation. Positive critical reviews, advertisements, press releases, publications, and endorsements could all be used to prove the distinguished nature of the production.
- Yu received national or international recognition for your professional achievements, as demonstrated by published materials by you or about you in major newspapers, trade publications or other publications.
- You performed and will perform in starring or essential roles for organizations with distinguished reputations, as evidenced by major media outlets or testimonials.
- A record of major critically acclaimed or commercially successful performances, as evidenced by viewer ratings, box office receipts and other professional achievements reported in major media outlets.
- Recognition of your accomplishments from relevant organizations, critics or recognized experts in your field, as evidenced by testimonials that clearly indicate the author’s expertise and familiarity with your accomplishments.
- A high level of compensation for your services compared to other people competing in your field, as evidenced by employment contracts, etc.
If none of the foregoing applies to you (perhaps due to the nature of your profession), the USCIS is not totally inflexible — you can submit comparable evidence and the USCIS might still accept it.
4. The advisory opinion letter
The advisory opinion letter is a written advisory opinion on your extraordinary ability from someone with expertise in your field, or from a peer group such as a labor union. It works something like a letter of recommendation. Submit the original of the letter and any documents that may be included, rather than copies (the signature should be in the original ink, for example).
The USCIS may waive this requirement under certain circumstances — if a peer group doesn’t exist in your field, for example, or if you have submitted a previous advisory opinion letter within the last two years. In most cases, however,, it is decidedly advantageous to include an advisory opinion letter with your application.
I-129 Processing Times
The processing time for an O-1 I-129 application is considerably shorter than processing times for most other types of visas. In most cases, processing is completed within two or three months if there is no flaw or omission in your application. You can also use the USCIS Premium Processing Service by filing Form I-907. This will shorten your processing time to only 15 days, but it will cost you $1,410 in processing fees.
Consular Processing
Once your sponsor’s I-129 application on your behalf is approved, you can apply for an O visa at the appropriate US embassy or consulate in your country of permanent residence. Visa processing will be handled by the Department of State rather than the USCIS.
The steps in the visa application process vary depending on which embassy or consulate you are using. In general, however, the visa application process works like this:
- Prepare an appropriate photograph of yourself.
- Complete Form DS-160 online. You will need to upload your photo during the application process and pay the $190 filing fee online as well. Print out the fee receipt and keep it..
- A confirmation page will appear on the screen. Print it out and keep it.
- Schedule a visa interview with the embassy or consulate you are using. You will receive an appointment letter, which you should keep. The waiting time for an interview date may be as short as a few days but could be considerably longer if there is a backlog of applications.
- Bring the following documents with you to the interview: (i) the printed confirmation page of your DS-160 application; (ii) your interview appointment letter; (iii) your passport (it must be valid for at least 6 months after the conclusion of your intended period of stay in the U.S.); (iv) the photograph you prepared; (v) your I-797 Approval Notice; (vi) the receipt proving you paid the DS-160 visa fee; and (vii) any other documentation required by the embassy or consulate you are using.
- Attend the interview. You will be fingerprinted, and you can expect a face-to-face interview that should last about 20 minutes.
- If your interview is successful, an O-1 visa will be stamped onto your passport, and you will be entitled to enter the US within the period of validity of the visa.
The O-1 Visa’s Advantages Over the H-1B Visa
In a nutshell, the O-1 visa offers many advantages that the H-1B visa doesn’t offer, but it is much more difficult to qualify for. In comparison to the H-1B, the O-1 visa offers the following advantages:
- There is no annual quota on the number of visas that can be issued;
- There is no labor certification process;
- There is no ultimate limit on how long you can stay in the US — after your first visa status expires, you can keep extending your status indefinitely in one-year increments;
- O-1 status applies to certain occupations, such as athletics and entertainment, that are not covered under H-1B status.
- The processing time is typically faster than for the H-1B visa; and
- O-1 status is far less likely to be subject to political controversies (and adverse changes in visa rules) than H-1B status.
Dual Intent and Portability
O-1 visa status carries with it two of the advantages that make H-1B status so popular — dual intent and portability:
- Dual Intent: The O-1 visas is considered a “dual intent” visa, which means that you can transition to permanent residency without returning home first, as long as you meet the requirements for permanent residency under whichever status you are seeking it (EB-1, for example).
- Portability: O-1 portability refers to the ability of an O-1 visa holder to change employers while in the United States, without first having to return home to await the adjudication of his new O-1 application. Naturally, additional paperwork will be required to change employers (another I-129 petition, for example).
Changes Under the Trump Administration
Two major policies of the Trump administration could have an impact on O-1 visa holders and applicants:
- Until October 2017, an O-1 visa holder seeking an extension would be given the benefit of the doubt as to his qualifications, since he had already been granted O-1 status in the past. Now, however, the USCIS subjects all O-1 applications, including extensions, to the same strict scrutiny as an original application. This could reduce approval rates for extension applicants.
- The Trump administration has been cracking down on H-1B applications. This could indirectly affect O-1 applicants because an H-1B crackdown is likely to lead to more fraudulent or frivolous O-1 applications from those who would otherwise seek H-1B status. This, in turn, could lead to increased scrutiny or new regulatory requirements for O-1 visas.
- Until October 2017, an O-1 visa holder seeking an extension would be given the benefit of the doubt as to his qualifications, since he had already been granted O-1 status in the past. Now, however, the USCIS subjects all O-1 applications, including extensions, to the same strict scrutiny as an original application. This could reduce approval rates for extension applicants.
The Trump administration has been cracking down on H-1B applications. This could indirectly affect O-1 applicants because an H-1B crackdown is likely to lead to more fraudulent or frivolous O-1 applications from those who would otherwise seek H-1B status. This, in turn, could lead to increased scrutiny or new regulatory requirements for O-1 visas.
Still having Questions?
Do not hesitate to contact your experience immigration lawyer who can help you in the complete process.
