Law Offices of Jing Tan

O-1 Visa - Aliens of Extraordinary Ability

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The O-1 Visa is for individuals with extraordinary abilities within science, arts, education, business, or which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. Extraordinary ability is a high level of expertise and indicates that the person is one of a small percentage who has risen to the very top of the field. The foreign national must seek to enter the United States to continue work in the area in which he or she is extraordinary.

The O Visa classification consists of three visas: O-1, O-2 and O-3. O-2 Visas are for supporting individuals of the O-1 Visa holder, and the relationship between the O-1 and O-2 Visa holder must have been long lasting. The spouse and unmarried children of O-1 Visa holders are entitled to O-3 Visas to come to the Unites States with the main O-1 Visa holder.

Eligibility Requirements

The work performed must be temporary. The individual must possess skills that are extraordinary within the field of sciences, arts, education, business, athletics, or within the field of motion picture or television industry. Examples of proof of extraordinary ability can be contracts, awards, nominations, prices, published material or similar documentation reflecting the nature of the individual’s achievement.

Aliens who are subject to the two-year foreign residency requirement of the J-1 exchange visitor program and not be permitted to obtain H or L visa status until they and/or the primary J-1 status holder has spent two years in his/her home country after the expiration of the J-1 status or a waiver of the two-year residency requirement is obtained, may obtain O status without fulfilling the two-year residency requirement or getting a waiver of the requirement. In such cases however, the alien may not change status to O-1 in the United States, but must obtain an O-1 visa either in the home country or a third county.

Length of Stay in the U.S.

• An O-1 petition has an initial period of stay of up to 3 years.
• Subsequent extensions may last for no more than one year at a time. There is no limit to the number of extensions.
• Extensions may be granted indefinitely if the need for the continued employment remains.
• An O-1 employee for whom an extension petition has been filed can continue working for the department while the extension request is pending with U.S. Citizenship and Immigration Services (USCIS) for up to 240 days beyond the expiration of the previously authorized stay.

Processing Times

The O-1 petition and approval process takes approximately 3 to 4 months. If needed, USCIS offers an option for expediting O-1 petitions called “premium processing.” There is a special fee for this service in addition to the normal USCIS filing fee. Premium processing can reduce O-1 processing times significantly. However, you should be aware that premium processing only promises a response to the petition within 15 days. If USCIS requires additional information, they may respond with a Request for Evidence (RFE). Once USCIS receives the additional evidence that you submit in response, the 15-day clock begins again. USCIS approval of the O-1 visa petition is not guaranteed within 15 days.

Documents Required

The following documentation is needed to petition for an O-1 visa:

• Formal job offer letter. The offer letter must specify the dates for which work authorization is requested.
• Advisory Opinion.
• O-1 Petition.
• Supporting evidence of extraordinary ability in science, art, education, business, or athletics. U.S. Citizenship and Immigration Services (USCIS) regulations provide two bases (Basis A and B, described below) for showing evidence of extraordinary ability.

Basis A: Receipt of Award of International Standing

An individual may qualify for the O-1 category based on the receipt of the Nobel Prize or other award of similar international standing.

Basis B: Documentation Showing Extraordinary Ability

The individual must demonstrate at least three of the following:

• Receipt of nationally or internationally recognized awards or prizes for excellence in his/her field.
• Membership in associations in the field of extraordinary ability, which require outstanding achievement for membership, as judged by national or international experts.
• Citations in professional publications, written by others about the individual's work in the field. Include the title, date, and author and any translation, if necessary.
• Participation on a panel or as a judge of the work of others in the same or an allied field.
• Original scientific, scholarly or business contributions of major significance to the field.
• Authorship of scholarly articles in the field in professional journals or major media.
• Previous employment in a critical capacity for organizations and/or establishments that have a distinguished reputation.
• Evidence of high salary or other significantly high remuneration for services in relation to others in the field, as proven by contracts or other evidence.

Merely providing three sources of evidence does not establish that the foreign national possesses extraordinary ability. USCIS considers the quality of the evidence provided and not just whether the minimum amount of documentation has been submitted.

Documented evidence for an O-1 petition may be in the form of:

• Affidavits, contracts, awards, or other documentation reflecting the nature of the foreign national's achievements certified by an officer or responsible person employed where the work was performed.
• Affidavits written by present and/or former employers or recognized experts attesting to the reputation and extraordinary ability of the foreign national.

Photocopies of all documents are acceptable. All documents that are not in English must be accompanied by a certified translation.

Advisory Opinion

Prior to filing the O-1 petition with the USCIS, the alien should obtain an advisory opinion from an appropriate consulting entity, such as a peer group, labor organization, or management organization. The advisory opinion is to state whether the alien qualify as an alien of extraordinary ability and whether such extraordinary abilities are required for the activities to be undertaken by the alien.

Dependents

Spouse and dependents (unmarried children under 21 years of age) of O-1 workers are eligible for O-3 status. No employment is permitted for O-3 dependents. Individuals in O-3 status may attend academic institutions as long as the educational program does not include paid employment (e.g, co-op or research assistantship).

Travel Outside the U.S. and Reentry

When a foreign national in O-1 status wishes to leave the United States temporarily and return to continue his or her approved employment, he or she must carry appropriate documentation to gain reentry to the U.S. Reentry documentation generally includes:

• Original I-797 O-1 approval notice
• Letter verifying the O-1 worker's employment
• Passport valid for 6 months after intended re-entry date
• Valid O-1 visa

FAQ

1. Can I apply for change of status from J-1 to O-1?

Yes, you may change from J-1 to O-1 in the U.S. if you did not enter for graduate medical training, or if you entered in another J category and are either not subject to the two year home residency requirement or have received a waiver. If you are subject to Section 212(e) and have not received a waiver, or entered the U.S. for graduate medical training your employer can still submit a O-1 petition on your behalf. Once the petition is approved you must apply for the O-1 visa outside the U.S. and can enter the U.S. immediately without receiving a waiver or completing the 2 year home residency requirement.

2. Can dependents of O-1 visa holders work?

No, dependents on O-3 status may not work.

3. What is the difference between O-1 and EB-1(A)?

The O-1 category applies to foreign nationals seeking a nonimmigrant status, while the EB-1(A) category is for foreign nationals seeking permanent immigrant status. A person seeking O-1 status must have an employer in the U.S., while a person seeking permanent residence in the EB-1(A) category does not need a U.S. employer.

4. Can I work for more than one employer on O-1 visa?

Yes, if you work for more than one employer at the same time, however, each employer must file a separate petition with the USCIS.

5. Can I study on O-1 work visa?

Yes, you may engage in part-time study while on O status.