AN ALTERNATIVE TO THE H-1B: O-1 VISA FOR EXTRAORDINARY TALENT
The O-1A Visa is reserved for Aliens of Extraordinary Ability in science, education, business, or athletics) and the O-1B Visa is set aside for Aliens of extraordinary ability generally in the Arts with special additional requirements for those Artists in the motion picture or television industry. There is no annual limit to the number of O-1 Visas that are issued, and they are available year round for those who qualify.
Lesser Standard for Artists
The O-1A visa is the visa reserved for people of extraordinary ability in the sciences, education, business, or athletics, who can demonstrate sustained national or international acclaim. The O-1B Visa is for Artists or people with an extensively documented record of extraordinary achievement in the motion picture or television production business.
Generally, as an artist, one must show that he or she has acquired “distinction” in his or her artistic field. The regulations define “Distinction” as a high level of achievement as evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that the person is described as prominent, leading, or well known in the field of art.
However, the regulations make a distinction for artists pursuing careers in television or motion pictures, whereby the artist has a higher standard of achievement that he or she must prove. This standard is listed as: persons with an extensively documented record of extraordinary achievement. Practically speaking, the artist has to prove that he or she has distinguished him or herself in the field and does not necessarily need to show an extensively documented record of past extraordinary achievements. For this reason, this visa is sometimes referred to as the “Artist Visa.”
Visa applicants in both categories must seek to enter the United States to continue to work in their area of extraordinary ability. Applicants in the O-1 category are permitted to have dual intent, meaning that they can simultaneously intend to stay in the U.S. permanently and temporarily.
Persons integral to the success of the O-1 applicant, who seek to accompany and assist the O-1 applicant, may enter on an O-2 visa, provided that they have a foreign residence that they do not intend to abandon.
Spouses and children of O-1’s and O-2’s may be admitted to the U.S. on an O-3 visa, as long as they are following to join the principal applicant.
Higher standard for artists in the motion picture or television industry
In the motion picture or television industry, “extraordinary ability” means achievement, such that the applicant is recognized as highly skilled, outstanding, notable, or leading in his or her field. This is a much higher standard than that of Artists, generally. Generally speaking, in representing actors, our firm needs to see that the individual has either already played a significant role in previous productions or is already signed to perform in one.
The suggested criteria for Artists in television or motion pictures includes either a showing that the applicant has received, or been nominated for, significant national or international awards or prizes in the chosen field, such as an Academy Award, Emmy, Grammy, or Director’s Guild Award, or at least three of the following:
-performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements
-achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the applicant in major newspapers, trade journals, magazines, or other publications
-performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials
-a record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers or other publications
-received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the applicant is engaged, with the testimonials clearly indicating the author’s authority, expertise and knowledge of the applicant’s achievements
-a high salary or other substantial compensation for services in relation to others in the field, as shown by contracts or other reliable evidence
Proving “extraordinary ability” in fields outside of the Arts
For those in science, education, business, or athletics, “extraordinary ability” means that the applicant has risen to the very top in his or her chosen field. Of course, this is a much higher standard to achieve than that of Artists who apply for the O-1B Visa. At MJ LAW, our attorneys have often “narrowed the field” for these types of petitions to achieve the desired result of an O-1A approval for Aliens of extraordinary ability who perhaps have not risen to the level of national or international recognition. Focusing the field often involves concentrating the Alien’s expertise by focusing on his or her achievements in particular sub-fields. For instance, a Software Engineer may not be an individual who has risen to the top of the field of Computer Science or Software Engineering, as such a petition would require that the individual prove that he or she has contributed something significant to the general field of software engineering or computer science. With a narrowing down of the field, our attorneys can focus on a particular type of software application that the individual has developed and for which he is a recognized expert. The same can be done in education and business.
The USCIS has created a list of general criteria that one should try and fulfill in order to be classified as someone of Extraordinary Ability and worthy of an O-1 Visa.
This “Extraordinary Ability” designation can be satisfied by showing that the applicant has received a significant internationally-recognized award, such as the Nobel Prize, or at least three of the following:
-receipt of nationally or internationally recognized prizes or awards for excellence in the chosen field
-membership in associations in applicant’s field which require outstanding achievements, as judged by recognized national or international experts in the field
-published material in professional or major trade publications, newspapers or other major media about the applicant and the applicant’s work in the chosen field
-original scientific, scholarly, or business-related contributions of major significance in the chosen field
-authorship of scholarly articles in professional journals or other major media in the chosen field
-a high salary or other compensation for services, as evidenced by contracts or other reliable evidence
-participation on a panel, or individually, as a judge of the work of others in the chosen field or closely related field
-employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation
Additionally, all O-1 applicants must have a petition filed on their behalf by a U.S. employer or agent, and all petitioning employers/ agents must obtain a written advisory opinion, from a peer group or labor organization in the applicant’s field, describing the applicant’s extraordinary ability. An Agent for immigration purposes does not necessarily mean an Agent that is hired to represent the individual in securing projects in his or her field, as is traditionally understood.
The O-1 visa is initially given for a period of up to three years, with an opportunity to renew the visa in one-year increments, so long as the visa holder is engaged in authorized employment.
MJ LAW regularly manages O category visa filings and is available to assist sponsoring employers and agents, as well as help assemble the large amount of documentary evidence required to meet the various regulatory requirements for this visa classification. Petitions for O visa workers must be filed at least 45 days before the date of employment but not more than one year in advance.