Frequently Asked Questions of O1 Visa (Alien of Extraordinary Ability in Sciences, Arts, Education, Business and Athletics) and Requirements

What is the purpose of O1 visa?

O1 visa benefits aliens of extraordinary ability in the sciences, arts, education, business or athletics. The O-3 visa is for dependents (spouse and children) of O1 visa holders.

Compared to H-1B, what are the benefits of O-1?

A. No visa lottery that the employee needs to go through.
Unlike cap-subject H1B, an O-1 petition does not have the lottery restriction, even for private companies.

B. There is no wage requirement for O1.
Unlike H1B which has a prevailing wage requirement, O1 is not subject to the same requirement. However, the salary that is being offered should be appropriate for a position of O1 caliber.

C. Premium processing is always available for O-1.

What is the standard of review of O1 visa?

Aliens of different specialties are imposed different standards of review. The standard for determining “extraordinariness“ is highest for business persons, scientists and educators, and lower for the arts. For persons whose expertise is in science, education, and business, extraordinary ability is shown by sustained national or international acclaim and the aliens must have risen to the top of the field. This standard is similar to that the EB1-A immigrant visa. To qualify as an O-1 alien of extraordinary ability in the arts, the immigration rules require “distinction.“ “Distinction“ means a high level of achievement in the field of arts as evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that a person is described as prominent, leading, or well-known in the field of arts. Those seeking a visa to work in the television or motion picture industry have a different standard. They need to demonstrate record of extraordinary achievement. All O-1 seekers must be entering the United States to work in the field in which he has received that acclaim.

Who qualifies as an alien of extraordinary ability as scientists, educators, business people and athletes?

Those foreign nationals must have sustained national or international acclaim and their achievements have been recognized in the field through extensive documentation. In addition, the foreign person is seeking to enter the United States to continue to work in the field of endeavor that is the subject of the acclaim.

For ou firm’s successful O1 cases, please visit our O1 success stories here.

What does “extraordinary ability“ mean?

The phrase “extraordinary ability“ means a level of expertise indicating that the individual is one of that small percentage who has risen to the very top of the field of endeavor.

How should an application establish that the foreign national has sustained national or international acclaim in business, science and education?

National or international acclaims can be demonstrated by receipt of a major internationally recognized award such as Nobel Prize or the Academy Award. Alternatively, the foreign person must provide at least three of the following types of evidence:

  1. Receipt of nationally/internationally recognized prizes/awards for excellence in the field;
  2. Membership in associations in the field that require outstanding achievement of their members, as judged by recognized national or international experts;
  3. Published material in professional or major trade publications or major media about the alien;
  4. Participation on a panel or as a judge of the work of others in the same or an allied field of specialization;
  5. Original scientific, scholarly, or business-related contributions of major significance;
  6. Authorship of scholarly articles in professional journals or other major media;
  7. Current or previous employment in a critical or essential capacity for organizations or establishments that have a distinguished reputation; or,
  8. Past or proffered high salary or other remuneration for services, evidenced by contracts or other reliable evidence.

What is the processing time for O1 visa?

After the I-129 petition is filed, it will be processed at the Texas Service Center (TSC). Current O-1 I-129 processing times can be found on the USCIS website here. O-1 petitions also have the option of requesting premium processing, which will shorten the initial processing time for an I-129 petition to 15 calendar days.

May the O1 visa holder have dual intent?

No, O-1 is not one of those dual-intent visas such as H1B or L-1. However, there is no foreign residence requirement for O-1 beneficiaries. In addition, the approval of a permanent labor certification or the filing of an immigrant preference petition is not a basis for denying O status. The Department of State Foreign Affairs Manual states (here), “The alien may legitimately come to the United States for a temporary period as an O-1 or O-3 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.” Therefore, filing I-140 or I-485 alone should not prohibit one from obtaining O1 visa. But after filing I-485, one should not travel internationally on O-1. Instead, he/she should wait to travel internationally after receiving AP (Advanced Parole), which can be obtained by filing I-131 together with I-485.

Who can file the O petition?

Class O aliens cannot petition on their own behalf. Only a United States employer or agent may file a petition, and petitions must be filed with the USCIS Service Center in the jurisdiction where the O-1 alien intends to work. A foreign national intending to work for multiple employers must have petitions filed on her behalf by each employer in their respective jurisdiction unless the petition is filed by “an established agent.“ Agents are those persons authorized by foreign employers to file an I-129 petition and to accept service of process.

What documentation should the O petition file?

The petitioner needs to file Form I-129 along with the supporting materials. An O1 petition may not be filed more than six months prior to the need for the foreign national's services. Among the supporting materials, the petition must include copies of any written contracts between the petitioner and the beneficiary or, if there is no written contract, a summary of the terms of the oral agreement under which the alien will be employed, an explanation of the nature of the events or activities, the time period requested for the visa, and a copy of the itinerary of events at which the beneficiary will perform.

How long can an O1 visa holder stay in the U.S.?

The period of stay for the O nonimmigrant is tied to the time necessary to provide for the event or activity for which the nonimmigrant is admitted, up to a three-year period. O1 visa status may be renewed in one year increments, or until the project is finished.

Can my family join me if I obtain an O1 visa?

Yes. Spouses and children of an O1 visa holder are eligible for admission to the United States in O-3 status. Dependents need to show proof of the family relationship. Dependents may not engage in employment, but may attend school or college.

What does the attorney fee cover?

We will provide everything necessary to file your O petition, including:

  1. Contacting and discussing with your (potential) employer to facilitate their sponsorship for your petition.
  2. After securing sponsorship, we will discuss with you about good candidates to write you recommendation letters.
  3. Drafting up to six recommendation letters for your recommenders to revise and sign based on information you provide.
  4. Drafting job offer letter detailing the position, the project, and your qualifications for your employer to review and sign.
  5. Providing a list of supporting documentation you should prepare with the petition;
  6. Organizing all the required documentation for your O-1 petition according to the USCIS regulations.
  7. Drafting the petition letter and revising it to your satisfaction.
  8. Submitting the completed petition materials to the proper USCIS Center.
  9. Contacting the USCIS for the status inquiry of your pending case.
  10. Responding to RFE (Request for Evidence), NOID (Notice of Intent to Deny) or NOIR (Notice of Intent to Revoke) without charging extra attorney fee.

What are the USCIS fees of O1 visa?

The USCIS filing fee is $530 for nonprofits and small employers with 25 or fewer full-time employees, and $1,055 for all other employers.

There is also an asylum program fee, which is $0 for nonprofit employers; $300 for small employers with 25 or fewer full-time employees; and $600 for all other employers.

The USCIS premium processing fee is currently $2,805.

Can an O status granted to freelance in an open market?

No, an alien in O classification may only be admitted to perform services in specific, identified events. O status may not be granted to an alien to enter the United States to freelance in the open market. Examples of an event include a scientific project, a conference, a convention, a lecture series, a tour, an exhibit, a business project, an academic year, or an engagement.

Can an alien do work other than the identified event?

No. An alien admitted in O-1 status may work only in connection with such identified events and an amended petition must be filed to add events not specified in the petition. An exception to this rule relates to an artist or entertainer who will undertake additional performances or engagements that require an alien of O-1 caliber; in such cases, an amended petition is not required.

What is an advisory opinion?

The evidence of advisory opinion must be accompanied with the petition. The employer needs to consult with an appropriate peer group, labor organization, or management organization in the area of the alien's ability. In most instances, evidence of consultation takes the form of a written advisory opinion obtained from the appropriate consulting entity with expertise in the specific field involved. An advisory opinion is not required if the petitioner establishes that an appropriate consulting entity does not exist.

What happens if the O1 employment has to be terminated early?

In the event that the O1 employment is cut short (due to lay off or resignation), the beneficiary should have a grace period of up to 60 days or until the end date of their I-94, whichever is shorter. During this time, the beneficiary cannot work and should be prepared to leave the U.S. unless they are in the process of changing to another status.

The petitioner should report to the USCIS about the early termination of the employment. If the O-1 employment terminates for reasons other than voluntary resignation, the petitioner is responsible for providing the reasonable cost of the beneficiary's transportation to his or her last place of residence prior to entry into the United States.

What happens if there are changes to the terms of the O1 employment?

In general, the petitioner should file an amendment if there are material changes to the terms of the employment. Examples include changes in worksite location, changing from full time to part time, substantial changes to job duties, etc.

The O1 petitioner is a start-up company. Is there a requirement on the size of the petitioner?

Generally, no.

I hold J visa and are subject to INA 212 (e) two-year home residency requirement, can I obtain O1 visa before I receive J waiver or fulfill the two year requirement?

Yes. If you are still subject to 212 (e), after your I-129 petition approval, you can obtain O1 through “consular processing” at a U.S. consulate.

What is the difference between obtaining O1 through consular processing and changing status within the United States to O1?

If you change status to O1 within the U.S., your status will automatically change to O1 as of the “Valid From” date printed on your I-129 approval notice. But if you go through consular processing, then after your I-129 petition approval, you need to schedule an interview at a U.S. consulate abroad, complete the interview, receive your O1 visa, and enter the United States with that O1 visa to activate your O1 status. You may be subject to administrative processing during your O1 consular processing at the consulate, and if your case is placed into administrative processing after the interview, this will delay the issuance of your O1 visa.

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