The O-1 Visa Option for Persons of Extraordinary Ability
O-1 status is available to persons of extraordinary ability in the sciences, business, athletics, and education. Sometimes, O-1 status is an excellent option for some persons subject to the J-1 two-year foreign residence requirement who are not eligible for H-1B (specialty worker) or L-1 (intracompany transferee) nonimmigrant visas or permanent resident status unless a waiver is obtained or they return home for two years. O-1 status is also sometimes a viable alternative to H-1B status where the employer is unwilling to comply with the H-1B requirement that the employer must post a public notice containing the wage to be paid an H-1B worker. Similarly, the O-1 option should be considered when an H-1B or L-1 visa holder is ineligible for further extensions and does not desire or cannot obtain permanent resident status.
An O-1 visa can be a viable option to solve these problems for persons of extraordinary ability in the sciences, education, business, or athletics. Significantly, as in the case of an H-1B visa application, an “extraordinary ability” O-1 visa applicant does not need to prove to the United States Citizenship and Immigration Services (USCIS) or to a U.S. Consul that he or she is not an intending immigrant and that he or she maintains a residence abroad. Qualifying for O-1 status is not particularly difficult for those who, according to their peers, have made outstanding contributions to their field such that they satisfy the USCIS definition of extraordinary: one of the small percentage of persons who has risen to the very top of his or her field of endeavor such that he or she enjoys sustained national or international acclaim. O-1 status is also available to persons of extraordinary ability in the arts, including the culinary arts. However, the standards are different.
O-1 Eligibility Requirements
To qualify as a person of extraordinary ability there must be evidence that the visa beneficiary has earned acclaim by the receipt of a major internationally recognized award or at least three of the following:
- Receipt of lesser nationally or internationally recognized prizes or awards for excellence.
- Membership in associations in the field which require outstanding achievements of their members, as judged by recognized experts.
- Evidence of the beneficiary’s authorship of scholarly articles in his or her field, in professional journals, or other major media.
- Published material in professional or major trade publications or major media about the beneficiary and his or her work.
- Evidence of participation on a panel, or individually, as the judge of the work of others.
- Evidence in the form of letters or affidavits from prominent colleagues who can confirm the beneficiary’s original contributions of major significance to his or her field.
- Evidence that the beneficiary has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation.
- Evidence that the beneficiary has commanded and now commands a high salary or other compensation for services.
It also is possible to seek O-1 status for individuals involved in the fields of art and entertainment. It must be noted that the qualifying standard for artists and entertainers to qualify for O-1 status is less stringent than the one for individuals in science and business. The definition of extraordinary for aliens in the arts is “distinction”, which is in turn defined as “a high level of achievement… 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.” To qualify as a person of extraordinary ability in the arts or entertainment field, there must be evidence that the visa beneficiary has earned acclaim by the receipt of a major internationally recognized award or at least three of the following:
- Evidence that the individual has received international/national recognition for achievements as demonstrated by critical reviews or other material by or about the individual in major newspapers, trade journals, or other publications.
- Evidence that the person has performed, and will perform, a critical role for organizations or establishments that have a distinguished reputation as shown by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements.
- Evidence that the person has performed, and will perform, a critical role for organizations or establishments that have a distinguished reputation as shown by media articles, testimonials, etc.
- A record of major commercial or critically acclaimed successes.
- Evidence of significant recognition for achievements from organizations, critics, or other recognized experts in the field.
- Evidence of a high salary or other substantial remuneration for services in relation to others in the field.
Even if three of the above forms of evidence are produced, O-1 status will not be accorded unless a “peer group” writes an advisory opinion based upon a review of the evidence to be submitted to the USCIS which concludes that the beneficiary has risen to the top of his or her field of endeavor. The regulations of the USCIS define a “peer group” as a “group or organization which is comprised of practitioners of the alien's occupation who are of similar standing with the alien and which is governed by such practitioners.” A “peer group” can be “a person or persons with expertise in the field.”
The Employer’s Responsibilities
As with an H-1B or an L-1 visa, an O-1 visa application is made by an employer, and the O-1 visa is valid only for work with the employer under the terms of the O-1 petition. The basic information required from an employer for an O-1 visa petition includes the dates the organization was established, IRS employer ID number, the total number of employees, net and gross annual income for the last fiscal year, a detailed descrip tion of the proposed job, the proposed salary, and the approximate value per week of the benefits (e.g., health insurance). The employer must also state on the O-1 petition that it is willing to pay the beneficiary’s “return transportation abroad” in the event the O-1 employee is terminated before the expiration of his or her visa. However, the rules of the USCIS governing this “return transportation” requirement lack an enforcement provision and do not even indicate to whom the cost of transportation must be paid.
Administrative Processing
The USCIS usually requires up to six months to adjudicate an O-1 petition, although 15-calendar-day “premium” processing of an O-1 petition is available for an additional $1,000 filing fee payable to the U.S. Department of Homeland Security. After its approval, persons subject to the two-year foreign residence requirement or who have violated any term of their previous visa status must secure their initial O-1 visa at a U.S. Consulate abroad. Significantly, an O-1 visa stamp by a U.S. Consul is virtually assured once the USCIS approves the O-1 visa petition because O-1 visa applicants need not show that they do not wish to immigrate to the United States and that they have sufficient ties to their home country to compel the ir return abroad. O-1 status is available initially for a period of three years, but can be extended indefinitely on a year to year basis, provided the employer establishes a continuing need of the beneficiary’s services. However, O-1 status does not result in work authorized status for the beneficiary’s spouse or child.
What About Permanent Resident Status And The Two Year Rule?
Those who qualify for O-1 status usually also qualify for permanent resident status as a person of extraordinary ability who does not require a job offer or labor certification from the Department of Labor. However, obtaining an O-1 visa or any other nonimmigrant status by a J-1 visa holder does not eliminate the need to either obtain a waiver of the two year home country rule or to return to the home country for two years. Moreover, the time spent by a J-1 visiting a home country while in O-1 status does not count towards the satisfaction of the two-year rule. Thus, O-1 status is a temporary solution for persons of extraordinary ability who have not yet been able to obtain a waiver of the two year foreign residence requirement. Nonetheless, it may be the only solution for many J-1 exchange visitors who are not prepared to return home for two years and are not yet eligible for a waiver.
In employment-based immigration cases, the attorney represents both the petitioning employer and the employee-beneficiary. In fact, in this type of case, immigration documents can only be submitted to the government by a petitioning employer on behalf of an employee-beneficiary. Therefore, the attorney must be authorized by the employer to file papers on the employer’s behalf which, if approved, will enable the employee-beneficiary to receive a visa. Attorneys are permitted to represent two parties simultaneously, if so authorized, unless their interest conflicts. Representing two parties simultaneously in one matter also requires an attorney to be equally loyal to both parties. Under those rare occasions when a conflict of interest develops between a petitioning employer and the employee-beneficiary, the attorney cannot take sides regardless of which party pays the attorney fees, and, the attorney must withdraw from representing both parties. If you have any questions about the dual representation issue which exists in almost all employee-based immigrations cases, please call our office.