O-1 Extraordinary Ability Worker Visas
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. 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. The O-1 is a great visa option for those who do not qualify for the H-1B, the L-1A because of “cap” or other issues. This classification is very good for athletes, artist, entertainers, highly qualifies chefs and businessmen who may not have a Bachelor’s degree. The O-1 visa does not have a “prevailing wage” requirement like the H-1B. O-1 is also a great visa option because there is no foreign residence requirement.
The USCIS Regulations indicate 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
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
The Immigration and Nationality Act provides a separate definition of extraordinary ability in the case of arts for O-1 purposes; namely that it means “distinction.” The regulations define distinction as “a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.” An artist includes any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts does not have to be at the very top of his or her field, but rather only substantially above that ordinarily encountered.
The Regulations also specify that extraordinary ability is proven with evidence of nomination or receipt of an significant international or national award or prize, such as an Academy Award, an Emmy, a Grammy, or Director’s Guild Award, or evidence of at least three of the following:
- Alien has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation
- Alien has achieved national or international recognition for achievements evidenced by critical reviews or other published materials
- Alien has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation
- Alien has a record of major commercial or critically acclaimed successes
- Alien has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged OR
- Alien commands or has commanded a high salary
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. Prior to filing the O-1 visa petition with the USCIS, 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. If the position is covered under a union contract, the employer may obtain a “no objection” letter 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”.
The standard for obtaining an O-1 visa is very high. In addition, it is often of the utmost importance for many artist and entertainers to obtain a visa quickly. The Fleischer Law Firm LLC recommends that an O-1 applicant use the USCIS “premium processing” service so that the petition will be approved in 15 days or less. This is a great way to “expedite” a case for a reasonable fee ($1000). It is recommended you find an attorney to file the petition. The Fleischer Law Firm LLC can help you through this process.