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O-1 Visa Individuals with Extraordinary Ability or Achievement: USA Immigration

The O-1 visa is designed for persons of extraordinary ability in the arts, sciences, education, and athletics. Persons in the television or motion picture industry may also qualify if they can show that their work has brought them national or international recognition.  In order to qualify, the person must provide evidence to substantiate their extraordinary ability or achievement.

The O-1 visa consists of two categories: the O-1A visa and the O-1B visa. The O-1A visa is designed for individuals with extraordinary ability or achievement in the athletics, business, education, or sciences, whereas the O-1B visa is designed for individuals that possess extraordinary ability or achievement in the arts or television and film industry. Please see our article on O-2 visas: Support Staff of O-1 visa Holders.

O-1 Visa Requirements:

In order to qualify as a person of extraordinary ability, the applicant must demonstrate that they have risen above others in their field to the point where they have gained national and international recognition for their work. They must also show that they are coming to the United States for a temporary period of time in order to continue work related to their field of expertise.

In the fields of athletics, business, education, and science, extraordinary ability refers to a great level of expertise, in which the applicant falls within the top few percent of individuals in their respective field. 

In the fields of arts, extraordinary ability refers to distinction. The applicant must show that they have a much greater level of skill and recognition than the majority of individuals in their respective field, indicating that they can be described as a leading or prominent individual in the arts.

In the field of the television and film industry, extraordinary ability refers to a skill or recognition that far exceeds that normally found in the industry. The person must be described as outstanding, notable, or a leader in their field.

O-1 Visa Application Process:

To apply for an O-1 visa, the petitioner must file Form I-129 Petition for Nonimmigrant Worker. The petition must be filed within a year of the alien’s need of coming to the United States. In order to ensure that the visa is approved in the appropriate time period, one should file Form I-129 at least 50 days before the alien is to continue their work in the United States.

O-1 Visa Consultation Requirement:

• The applicant must provide a written advisory opinion from a peer group related to their field of expertise, or from an individual selected by the peer group that also has expertise in the field. The advisory opinion may also come from labor organizations
• In the case of applicants with expertise in the television or film industry the consultation may come from a labor union or other organization with expertise in the respective field

Waiving of the O-1 Consultation Requirement:

• The consultation requirement may be waived if the petitioner can show that the suitable organization does not exist. In this case, the petition will be solely based on the evidence provided by the petitioner. In the case of the arts, the consultation requirement may be waived if the individual reenters the United States within 2 years of having a previous consultation. In this case, the petitioner should include a copy of the previous consultation along with a waiver request.

O-1 Visa Contract between the Petitioner and the Beneficiary (person of extraordinary ability):

A written agreement or contract between the petitioner and the beneficiary (person of extraordinary ability) must be provided with the I-129 Petition for Nonimmigrant Worker. An oral agreement may be included instead of a written agreement or contract. The oral agreement may consist of emails, written documents regarding the terms of the agreement, and other correspondences between the petitioner and beneficiary that verifies than an oral agreement was made between the parties. The terms and conditions must include what both parties agree to by entering into the agreement.

O-1 Visa Agents:

An agent may be used in the O-1 visa process. The agent can be the employer, represent the petitioner/employer, represent the beneficiary (person of extraordinary ability) or both. 

In the case where the person of extraordinary ability will be working in the United States under multiple employers, an agent can act as the petitioner and represent the other employers. In this case, the agent can file the I-129 Petitions for the multiple employers.

If the agent is to act as the petitioner for the multiple employers, the agent must include the following information with the I-129 petitions:

• Documentation specifying the dates, events, and venues in which the person of extraordinary ability will participate in activities related to their field of expertise. The agent must include the names, addresses, and other information on the employers within the time periods specified, as well as the names and addresses of the venues in which the activities will be performed

• Contacts or Agreements between the beneficiary and the specified employers

• The agent must include an explanation of the terms and conditions of each of the provided contacts or agreements between the beneficiary and the actual employers

After the I-129 petition is approved, the person of extraordinary ability may travel to a U.S. embassy or Consulate in order to obtain their O-1 visa

O-1 Visa Agents Acting as Employer:

In O-1 cases where the agent acts as the employer of the person of extraordinary ability, the agent must include the following information with the I-129 petition:

• An agreement between the agent and the person of extraordinary ability (beneficiary) indicating the wage that is being offered by the agent, as well as the terms and conditions of the agreement. A summary of the terms and conditions of an oral agreement or a written contract between the two parties will suffice
• In cases where the person of extraordinary ability will be performing their services in more than one location, the agent must provide a complete itinerary that contains the dates, locations, and venues in which the services are to be performed. If the agent is to act as the employer, an itinerary is absolutely necessary. It is best to include as much information as possible. The USCIS ultimately decides whether the itinerary requirement is met. The itinerary should conform to the industry standards.

Importance of Agreement in O-1 Visa Cases:

Based upon the provided contract or agreement with the I-129 petition, the USCIS will ultimately determine whether the agent is acting as the employer or whether the agent is representing the employer, multiple employers, the beneficiary, or a combination thereof. Therefore the contract should specifically include the relationship between the beneficiary (person of extraordinary ability) and the agent, including but not limited to how, when, and the amount that the agent will be paid.

Are there any O-1 Visa Wage Requirements?

There are no specific wage requirements or guidelines for O-1 visa purposes. However, the O-1 visa petition must still include information on the wage offered to the beneficiary.

O-1 Classification Based on Requirements:

Requirements of the O-1A Visa:

In order to be considered for an O-1A visa, the person of extraordinary ability must be able to provide evidence that they have received an internationally acclaimed award, such as a Nobel Prize or Olympic Gold Medal, or the person of extraordinary ability must provide three of the following:

• Evidence of a high salary or compensation for their services as shown in contracts and service agreements

• Evidence that they have received national or international prizes or awards

• Evidence of published material in professional or other publications, newspapers, or other media about the person of extraordinary ability’s work
  
• Evidence of the beneficiary’s authorship in scholarly articles in professional journals or other major media

• Employment in an significant position in an organization related to your field

• Evidence of membership in organizations related to your field, which demands excellence of its members

• Evidence of participation as a judge of others work in the same field for which an O-1 visa is sought

• Evidence of significant scholarly, scientific, or business contributions to their field of expertise

The petitioner may submit other evidence to substantiate the claim of extraordinary ability if the above criteria do not readily apply to the field of expertise.

Requirements of the O-1B Visa:

To qualify for an O-1B visa, the petitioner must provide evidence that the person of extraordinary ability has been nominated for or has received a significant national or international award, such as an Academy Award Grammy or provide at least three of the following:

• Evidence of a high salary or compensation for their services as shown in contracts and service agreements

• Evidence that the person of extraordinary ability has performed in a significant or critical role for a distinguished organization. The petitioner must provide information on the organization in the form of publications, testimonials, etc.

• Evidence that the person of extraordinary ability will perform in a lead or significant position in distinguished productions or events. The petitioner must provide evidence that the production is significant through contracts, advertisements, publications, or other media

• Evidence that the person of extraordinary ability has achieved national or international recognition for their accomplishments by providing publications or other published material

• Evidence of the beneficiary’s successes by providing film or television, rankings, box office receipts, or other indicators of rank or success in the beneficiary’s field of expertise

• Evidence that that the person of extraordinary ability has achieved significant recognition in their field for their work from organizations, agencies, and other experts in the beneficiary’s field of expertise. Evidence can include but is not limited to testimonials indicating the qualifications of the author and the achievements and successes of the beneficiary

If the beneficiary’s field of expertise is in the field of the arts, and the above criteria does not generally apply, the petitioner may provide other appropriate documentation to verify that the beneficiary demonstrates extraordinary ability and expertise in their field.

O-1 Visa Change in Employer:

If while under an O-1 visa the person of extraordinary ability changes employers, the new employer must file a new Form I-129. The new petition must include information on the new employer including new contracts and service agreements. If an agent filed the initial I-129, then new information regarding the new employer must be accompanied by a request for an extension of stay.

O-1 Visa Change in Terms and Conditions of Employment:

If there have been any changes in the terms and conditions of employment in O-1 visa cases, the petitioner must file an amended petition on Form I-129. The petition must be sent to the same USCIS center in which the original I-129 was filed. In the Case of athletes, if an athlete is traded to another team, legal employment may continue for 30 days. Within the 30 day period, the new employer must file a new I-129; otherwise the employee will lose employment authorization. If the petition is denied, then the employee will lose employment authorization and be out of status. 

O-1 Visa Period of Stay:

The O-1 visa is valid for up to three years. The O-1 visa holder may enter the United States 10 days before the validity period of the visa and end 10 days after the validity period ends. The beneficiary must only engage in employment upon which their visa was based.

O-1 Visa Extension of Stay:

An O-1 visa extension of stay can be granted if an extension is needed in order for the beneficiary to complete or continue the activities mentioned in the initial I-129.
In order to apply for an extension of stay the petitioner must complete and file Form I-129, and submit a copy of the person of extraordinary ability’s Arrival/Departure Record (Form I-94). The petitioner must also provide a written statement from the person of extraordinary ability, stating the reason for the extension.

Spouse and Children of O-1 or O-2 Visa Holders:

O-1 and O-2 visa holder's spouse and children under 21 years of age are allowed to reside in the United States with the O-1 or O-2 visa holder as long as the O-1 or O-2 visa remains valid.

O-3 Visa Extension of Stay:

In order to for O-3 visa holder to obtain an extension of stay, the O-1 or O-2 visa holder must also be seeking an extension of stay. The spouse and children of O-1 or O-2 visa holders must submit Form I-539 Application to Extend/Change Nonimmigrant Status. The spouse and children of O-1 or O-2 visa holders must provide supporting documentation regarding why they are seeking an extension of stay, specifically why the O-1 or O-2 visa holder requires an extension of stay.