O-1 status is only provided to people with extraordinary abilities.
O-1 Visa is Suitable For:
1. Foreign nationals who have received major prizes or awards or other recognition for outstanding achievements in the field of arts, sciences, education, business or athletics and with a job offer from a U.S. company
2. Foreign nationals who have produced original scientific or scholarly contributions in the academic fields and with a job offer from a U.S. company
3.Artists and entertainers of extraordinary ability affiliated with motion picture or television industry
4.U.S. companies to hire foreign nationals with extraordinary ability in the field of arts, sciences, education, business or athletics
The O-1 non-immigrant visa category is for: foreign nationals of “extraordinary ability” in the sciences, arts, education, business, or athletics; certain individuals accompanying or assisting them; and their family members. It can be used for faculty or staff positions of a temporary nature. The employer must submit substantial documentation to the INS as evidence of the individual’s extraordinary ability. The INS must approve the employer’s petition before the foreign national can be employed or receive compensation.
Qualifying for the O-1 Visa
Under federal law there are three different standards for the O-1 category:
the most exacting standard applies to those individuals in the sciences, education, business and athletics;
-a much less rigorous standard applies to individuals in the arts;
-an intermediate standard applies to individuals in the motion picture or TV industries.
This document will focus on those individuals in the sciences, education, business and athletics.
This O-1 visa category is reserved for those individuals who have risen to the very top of their fields of endeavor and can provide documentary evidence to substantiate this claim. To qualify for O-1 visa status, an individual in the sciences, education, business or athletics must demonstrate national or international acclaim and recognition for achievements in the field of expertise by providing evidence of:
1. the receipt of a major, internationally recognized award, OR
2. at least three of the following:
-receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
-membership in an association in the field which requires outstanding achievements of its members;
-published material in professional or major trade publications or major media about the individual concerning his/her work in the field. (This documentation must include a copy of the article showing the title, date and author. If the article is not in English, a translation must be provided);
-evidence of participation on a panel, or individually, as a judge of the work of others. -(This can include participation as a panel of experts for a Ph.D. defense and/or review of articles and books prior to publication.);
-scientific, scholarly, or business-related contributions of major significance to the field. (This documentation should take the form of letters from peers who are considered to be experts in the field attesting to the individuals major contributions.);
-authorship of scholarly articles in the field in professional journals or other major media;
employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation;
-high salary or other remuneration commanded by the individual for services.(This must be accompanied by contracts or other reliable evidence.);
-other comparable evidence.
Requirements and Restrictions
The individual must be coming to the U.S. to work in their area of extraordinary ability.
In addition to meeting the criteria outlined above, the individual must be coming to the United States to work in his or her area of extraordinary ability or achievement. However, the position, event, or performance need not require the services of a person of extraordinary ability.
Employment is position, employer, and date specific.
O-1 visa classification is granted by the Immigration and Naturalization Service. An application (called a petition) is filed by the employer on behalf of the employee and is employer and position specific. That is, the foreign national granted O-1 visa classification will be authorized by INS to be employed only by the employer that submitted the O-1 application and only for the position, event, or activity for which the INS granted approval. The O-1 visa is also date specific. The employee may not commence employment prior to the date authorized by INS and must terminate employment no later than the date authorized.
Termination of employment
If the O-1 foreign worker terminates employment with the petitioning employer, he/she will be will immediately lose O-1 status and is required to depart the U.S. immediately or risk action by the INS for violation of immigration regulations. If the employer dismisses the foreign worker prior to the date authorized by INS, it can be held responsible for return transportation of the foreign worker to his/her last place of residence outside the U.S.
Working for another employer
If the O-1 foreign worker wishes to change his employer, the new employer must file another O-1 petition and is not permitted to employ the foreign worker until it has received approval from INS for its O-1 application.
Duration of O-1 Visa Classification
There is no statutory limit on the period of time an individual may remain in the U.S. in O-1 visa status. However, the initial authorized period of stay will not be approved for more than three years. Extensions of stay, in one year increments, can be granted as long as the individual is continuing in the same position or activity for which they were originally granted O-1 status.
Advisory Opinion From a “Peer Group” or Labor Union
Prior to filing the O-1 visa petition with the INS, the employer must obtain an advisory opinion from an appropriate consulting entity or a labor organization, or show that an appropriate peer group, labor organization or management organization does not exist.
Under current federal regulations, if the position is covered under a union contract, the employer may obtain a letter of no objection signed by an official union representative of the local chapter. The letter must state the name of the employer and the name of the foreign worker, along with the name of the labor organization and the name and address of the local chapter. The letter must state that the labor organization has reviewed pertinent information about the position and the foreign worker’s credentials and that the hiring of the foreign worker will not “adversely affect the wages or working conditions of U.S. workers and that, therefore, it has no objection to the hiring of the foreign worker”.
Filing the O-1 Petition with INS
The employer must prepare and file a packet of information and documentation which includes:
-INS form I-129 with O supplement;
-copies of the foreign worker’s curriculum vitae/resume and educational background ;
-substantial supporting documentation as evidence that the foreign worker meets the criteria for the O-1 visa as outlined above;
-information about the employer, include financial information;
-a letter from the employer offering the position to the foreign national which includes a brief description of the position, including responsibilities and educational/professional requirements, dates of employment and salary offered. The letter must also include a statement of the foreign workers qualifications for the position and attest to his/her outstanding abilities and contributions within the occupational field for which the classification is being sought.
-the no objection letter from the union (or an advisory opinion from a peer group);
-a check made out to INS (for the filing fee).
The INS will review the contents of the petition to determine if the foreign worker meets the criteria for classification as an O-1 Alien of Extraordinary Ability and will notify the employer of its approval or denial.
Obtaining an O-1 Visa and Beginning Employment
Once the employer has obtained the approval notice from the INS, the foreign worker may apply for an O-1 visa at a U.S. Embassy or Consulate in his/her country of residence. The foreign worker presents the O-1 visa at the U.S. port of entry, and is admitted in O-1 visa status to assume legal employment.
In some instances, the foreign national may already be present in the U.S. in a non-immigrant visa category other than O-1. In these situations, it may be possible for the employer to request a change of visa category to O-1 on behalf of the foreign worker. This is called a “change of status”. If granted, the Notice of Approval will reflect the change to O-1 visa classification and the foreign worker may begin employment as of the date indicated on the approval notice. In these instances, it is not necessary for the foreign worker to obtain an actual O-1 passport visa to begin employment. However, if the O-1 foreign worker travels outside the borders of the U.S. he/she must obtain an O-1 visa from a U.S. Embassy or Consulate in order to re-enter the U.S. to continue legal employment.
Time Required for Processing
Barring unforeseen complications, we can expect a response from INS approximately 30 days from the date they receive the petition. Be aware, however, that in applications of this type it is not unusual for the INS to request additional information and/or documentation in order to make a decision. In order to avoid this, it is extremely important that we put together the best possible petition with strong documentation.