O-1 Visa

Immigration MemosJune 16, 2024

O-1 Visa

O-1 Basic Use and Requirements

The O-1 visa is for foreign workers who are aliens of “extraordinary ability.” It is divided into the O-1A which covers extraordinary aliens in the sciences, education, business or athletics, and the O-1B which includes extraordinary aliens in the arts, or extraordinary achievement in the motion picture or tv industry. There is a distinction in the criteria between O-1A and O-1B with the artistic O-1 typically easier to obtain.

A successful O-1 requires individuals demonstrate a track record of success in at least three of the criteria listed in the regulations. The O-1 visa allows a foreign national to work only for the company that filed the petition (unless filed using an Agent petition process), for an initial period of up to 3 years, with standard extensions granted in 1 year increments. There is no specific visa maximum, meaning O-1s can potentially be renewed multiple times provided the individual continues to qualify for the benefit.

Eligibility Criteria  

The O-1 has specific criteria that must be met in order to prove one is “extraordinary” and the criteria used in an application must be proven to the satisfaction of the adjudicator using documented evidence;

When qualifying for O-1A the petition must demonstrate the applicant is extraordinary by either receiving a one-time achievement at the highest level in the field (e.g. an Olympic Medal or Nobel Prize, etc.) or by documenting at least 3 of the following: receipt of nationally or internationally recognized prizes; membership in an association requiring outstanding achievements; published materials about the applicant in professional or major trade publications; participation as a judge of the work of others; original contributions of significance in the field; authorship of scholarly articles published in professional or major trade publications or other major media; serving in a critical or essential capacity for distinguished organizations; receiving a high salary in relation to the field, or; comparable evidence where the above criteria aren’t readily applicable to the applicant’s field;

When qualifying for O-1B the petition must demonstrate the applicant is extraordinary by either receiving a one-time achievement at the highest level in the field (e.g. an Emmy, Academy Aware or Pulitzer Prize, etc.), or by documenting at least 3 of the following: performed and will perform as a lead or starring participant in productions or events of distinguished reputation; performed and will perform in a lead, starring, or critical role for distinguished organizations and establishments; achieved national or international recognition for achievements, as shown by reviews; a record of publicly reported major commercial or critical success; significant recognition for achievements from variety of recognized experts in the field; high salary or remuneration in relation to others in the field, or; comparable evidence where the above criteria aren’t readily applicable to the applicant’s field;

Advantages

Allows U.S. companies to hire foreign nationals whether or not they have a parent, subsidiaries or affiliates abroad.

Allows for dual intent and thus the processing of a “Green Card” application while residing in the U.S. and traveling internationally.

Is often used as an alternative to the quota restricted H-1B for those individuals who are not able to get into the H-1B lottery but meet the extraordinary standards.

Any nationality can apply for an O-1.

Special Notes

The O-1 visa is employer specific unless the filing is made based on an Agent petition. These are more commonly the case with artists, performers and athletes where there may be multiple events or contracts the individual is performing on, in which case the O-1 is held by an Agent instead of a specific employer.

Regular processing can take weeks or months; however, Premium Processing is available; for an additional fee USCIS will take action on the case within 15 business days.

An O-1 petition must be approved before an individual can commence work. Unlike H-1B visa holders who can take advantage of portability.

O dependent spouses are not entitled to employment authorization.

STEPS OF THE CASE

Step 1 – Initial Preparation

Once the candidate accepts the job offer, HR provides the job description, salary, start date, employee contact information, and any other available documents to our office.  We then contact the employee and request they fill out our questionnaire and assemble the remaining required documents listed in our checklist.  The Employee or HR sends us the Employee’s remaining supporting documentation.

Step 2 – The Visa Petition Process

After receipt of the documents and questionnaire, the applicable forms and supporting letters are drafted, the following information is submitted to the USCIS:

Resume and copy of employee’s passport and prior USCIS documents;

Evidence satisfying the requirements, including external opinion letters confirming how applicant qualifies for the O-1;

Copies of degrees, diplomas and school records;

Academic equivalency evaluations of foreign degrees, and English translation if needed;

Brochures, promotional material or articles about the company;

Company annual report or financial statements;

Required USCIS forms (Form I-129 and O-1 Supplement with Form G-28); and

Company letter supporting the visa petition.

Step 3 – Approval

When the USCIS Service Center approves the petition, they issue an Approval Notice (Form I-797), which is received by the employer’s agent or attorney and transmitted to the employer or employee, as instructed by the employer. The employer will also receive a courtesy copy of the Approval Notice directly from USCIS.

If the petition for an extension of stay or new petition has been approved, an employee still in the country will receive his/her Form I-797 Approval Notice and the next time the employee leaves the country, they should go to the U.S. consulate to get the visa issued (see Step 4).  The employee will be issued a new Form I-94 (showing O-1 status) upon re-entering the U.S. (see Step 5).

Step 4 – Visa Issuance

This step is required before the employee can be work-authorized if, at the time the petition was filed, the employee was: outside the U.S.; traveled outside the U.S. while the application was pending, or the case was filed for consular notification.

In most cases, the employee simply reports to the consulate in his or her home country with a valid passport, a copy of the petition as filed, and original USCIS Approval Notice (Form I-797) to have the visa issued and affixed to the passport. Visa-issuing policies are specific to the Consulate you are processing at; therefore, it is important to check with the specific Consulate prior to attending.  Depending on the consulate and the applicant’s background then may be the need for additional background checks.

Step 5 – Entry into the U.S.

When the employee arrives at their port of entry (the airport or U.S. border crossing), a Customs and Border Protection (CBP) officer will examine the individual’s passport, visa and USCIS Approval Notice, and then issue their Form I-94 and allow entry. An electronic I-94 will be available to access online at https://i94.cbp.dhs.gov/I94/#/home within 24 hours.

Employees are always reminded to review their I-94 document to ensure it lists the proper status and date of expiration (status expiration should match the I-797 Approval Notice unless the individual’s passport expires beforehand – in which case the I-94 may be limited by the passport expiry).

 

** This outline/memo is provided for informational and discussion purposes only.  It does not act as a substitute for direct legal contact on an individual basis. **

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