O-1 VISA OPTION FOR PERSONS OF EXTRAORDINARY ABILITY
O-1 status is available to persons of extraordinary ability in the sciences, arts, business, athletics, and education. 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. Significantly, as in the case of an H-1B visa application, an “extraordinary ability” O-1 visa applicant does not need to prove to U.S. Citizenship and Immigration Services (USCIS) or to a U.S. Consulate that he or she is not an intending immigrant and that he or she maintains a residence abroad. Qualifying for O-1 status is possible 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 their field of endeavor such that they enjoys sustained national or international acclaim. O-1 status is also available for persons of extraordinary ability in the arts, including the culinary arts. However, the standard to qualify for O-1 status in arts is easier to satisfy. Each of these two standards is examined here.
SCIENCES, BUSINESS, EDUCATION OR ATHLETICS
To qualify as a person of extraordinary ability in the sciences, business, education or athletics, 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.
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 as evidenced by sustained national or international acclaim. The USCIS regulations define a “peer group” as a “group or organization, which is comprised of practitioners of the beneficiary’s occupation who are of similar standing with him/her and which is governed by such practitioners.” A “peer group” can be “a person or persons with expertise in the field.” A peer group letter does not ensure approval.
INDIVIDUALS IN THE ARTS
To qualify as a person of extraordinary ability in the arts, there must be evidence that the foreign national has been nominated for, or has been the recipient of, significant national or international awards or prizes in the particular field (e.g., Academy Award, Grammy, Emmy, etc.); or at least three of the following:
- Evidence of performance as a lead or starring participant in productions or events which have a distinguished reputation.
- Evidence of having achieved national or international recognition for achievements evidenced by critical reviews or other published material by or about the beneficiary in majors newspapers or trade journals.
- Evidence of performance in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation.
- Evidence of a record of major commercial or critically acclaimed success (as shown by title, rating, standing in the field, box office receipts, or other occupational achievements reported in trade journals, major newspapers, etc.).
- Evidence of receipt of significant recognition for achievements from organizations, critics, government agencies, 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.
For approval of an O-1 petition in the arts, the individual must demonstrate that he or she enjoys distinction or a “high level of achievement in the field as evidenced by a degree of skill and recognition substantially above that ordinarily encountered.” It must be shown that the individual described as prominent is “renowned, leading or well-known” in the field. As with a petitions for those in the sciences, business, athletics or education, a petition for an O-1 artist must be accompanied by an advisory opinion or consultation letter from an appropriate “peer group,” labor and/or management organization with expertise in the field. Either an artist’s potential U.S. employer or agent may file the petition on his/her behalf.
As with an H-1B or an L-1 visa, an employer makes an O-1 visa petition, 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 description of the proposed job, the proposed salary, and the approximate value of the benefits (e.g., health insurance). The BCIS usually requires approximately 60-90 days to adjudicate an O-1 petition. Government delays in processing times will vary, and may fluctuate widely in different regions of the country. However, under its “premium processing” program, the USCIS will guarantee a response to an O visa petition within 15 days, for an additional $1,000 filing fee. 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. 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 permission to work for the beneficiary’s spouse or child.
QUALIFYING FOR PERMANENT RESIDENT STATUS
Those who qualify for O-1 status usually may qualify for permanent resident status as a person of extraordinary ability who do not require job offers or labor certifications 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. 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.
DUAL REPRESENTATION I
n employment-based immigration cases, the attorney represents both the petitioning employer and the employee beneficiary. In fact, in this type of case, a petitioning employer on behalf of an employee-beneficiary can only submit immigration documents to the government. 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 employment-based immigration cases, please call our office. If you need assistance with an O-1Visa, or have a prospective employee that is seeking this status, call Gordon Law Group PC at (415) 284-1601.