O-1 Status

The O-1 classification is available for individuals of “extraordinary ability,” i.e., those who have risen to the top of their field of endeavor, a very high standard. The beneficiary of an O-1 petition may be granted an initial period of stay of up to three years, extended in one-year increments. Currently there is no limit to O-1 stay in the U.S.

1) O-1 Requirements

The petition may be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent.  The petitioner must demonstrate to the USCIS that the beneficiary is someone of “extraordinary ability” in his or her field. This may be evidenced by documentation of major awards or prizes, publications, patents, citations to the individual’s work, major accomplishments of significance to the field as a whole, letters of reference from other leaders in the field, and any other suitable documentation. There is also a peer group “consultation letter” requirement for O-1 visa petitions. An appropriate “peer group” might be a relevant professional or academic association, an individual with expertise in the employee’s field of endeavor, or a trade organization. The peer group or expert must provide a letter supporting (or, at a minimum, stating no objection to) the request for O-1 classification.

2) How soon can I start?

Processing times for the O-1 petition vary according to the availability of information needed to prepare the petition, government interruptions and backlogs at USCIS. On average, the O-1 visa petition process will take about 30-60 days, but O-1 petition preparation is typically lengthy due to the documentation requirements.  Premium processing (15 business day processing) is available for O-1 petitions.

Individuals who are outside the U.S. must apply for an O-1 visa stamp at a U.S. consular post abroad in order to enter the U.S. in O-1 status. Applicants must present a copy of the O-1 petition approval notice from USCIS to the consular post in order to obtain the O-1 visa.

3) Extension of O-1 visa status

Extensions of O-1 status should be filed during the six-month period prior to expiration of current stay, and are granted in one year increments. The employee’s qualifications and the employer’s continued need to employ an individual of extraordinary ability in the offered position must be established anew (and fully documented) with each extension application. If the extension application is filed prior to expiration of the current authorized stay, the individual will have continued work authorization for up to 240 days while the application is pending. There may be restrictions on international travel while the extension application is pending.

SUPPORT DOCUMENTATION FOR O-1 PETITION

1. CORPORATE (prospective U.S. employer):
   1. Petitioner’s Name and Biographic information;
   2. Employer’s Federal Tax Identification Number;
   3. Current annual report and/or audited financial statement, or federal corporate income tax return;
   4. Any available promotional pamphlets and brochures which describe the company/agent and its various products, service, etc;
   5. A complete description of the individual’s employment, assignment, performance or event requiring the individuals extraordinary ability;
   6. Full name and title of contact person (agent or company contact) who will coordinate paperwork and the full name and title of the petitioner’s authorized signatory for documents;
   7. Copy of all employment and engagement contract(s) between all parties including petitioner, agent, employer, and foreign national
2. INDIVIDUAL (Foreign national seeking 0-1 Petition):
   1. Completed Immigration Questionnaire (CK Form) and Working Visa Addendum (CK Form);
   2. Photocopies of individual’s passport and I-94 Card, and those of his/her immediate family members who will accompany him/her to the United States , all Forms I-20 or IAP-66 and copy of Employment Authorization Card, if any;
   3. Individual’s resume, curriculum vitae, and a summary of their field of endeavor;
   4. Photocopy of individual’s university or trade school diplomas and certificates, and course transcripts;
   5. Photocopies of individual’s professional licenses, certifications etc.;
   6. Evidence demonstrating at least 3/10 criteria, including awards, published articles, memberships, certificates, contracts, or any other evidence showing extraordinary ability in their field of endeavor;
   7. Information on contacts who can provide an advisory opinion and recommendation letters.

O-1A and O-1B: Two Different Standards

The O-1 classification has two parts, and the standard that applies depends on the field.

O-1A is for individuals of extraordinary ability in the sciences, education, business or athletics. This is the “top of the field” standard described above. The petition must show a major, internationally recognized award such as a Nobel Prize, or at least three of eight types of evidence listed in the regulations.

O-1B is for individuals of extraordinary ability in the arts, and for individuals of extraordinary achievement in the motion picture or television industry. The standard in the arts is “distinction,” which means a high level of achievement, shown by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that the person is prominent, renowned, leading or well known in the field. The arts are broadly defined and include not only performers but also directors, designers, choreographers, conductors, makeup artists, culinary artists and others.

To qualify for O-1B the petition must show that the foreign national has been nominated for, or has received, a significant national or international award or prize in the field, such as an Academy Award, an Emmy, a Grammy or a Director’s Guild Award, or at least three of the following:

1. Has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation, as shown by critical reviews, advertisements, publicity releases, publications, contracts or endorsements;
2. Has achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines or other publications;
3. Has performed, and will perform, in a lead, starring or critical role for organizations and establishments that have a distinguished reputation;
4. Has a record of major commercial or critically acclaimed successes, as shown by title, rating, standing in the field, box office receipts, or motion picture or television ratings;
5. Has received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field; or
6. Has commanded, or will command, a high salary or other substantial remuneration in relation to others in the field.

In the arts, comparable evidence may be submitted if these criteria do not readily apply to the occupation. In motion picture and television cases it may not, and the petition must include consultations from both the appropriate labor union and a management organization.

O-2: Essential Support Personnel

An O-2 visa is available to a person who will accompany an O-1 artist or athlete to assist in a specific event or performance. O-2 status is not available to those who assist O-1 individuals in the sciences, business or education. The petitioner must show that:

• The O-2 worker is an integral part of the actual performance;
• He or she has critical skills and experience with the O-1 individual that are not of a general nature and cannot readily be performed by a U.S. worker; and
• In motion picture and television productions, he or she has a pre-existing, longstanding working relationship with the O-1 individual, or the production will take place both inside and outside the United States and continuing participation is essential.

A separate petition must be filed for the O-2 workers, with its own consultation from the appropriate labor organization. Unlike the O-1 individual, an O-2 worker must have a residence abroad which he or she does not intend to abandon.

O-3: Family Members

The spouse and unmarried children under 21 of an O-1 or O-2 visa holder may accompany him or her in O-3 status for the same period. They may attend school, but they are not permitted to work.

DISCLAIMER: The confidential information provided in this memorandum is for information purposes only and is not intended to be legal advice. This information is not intended to create an attorney-client or other relationship between Kuck Baxter Immigration LLC and the recipient. The reader should consult with an immigration attorney before acting in reliance on any such information.