O-1 Visa and Requirement of Extraordinary Ability
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O1 Visa Requirements & Criteria for Extraordinary Ability
The O-1 visa allows non-immigrant foreigners with “extraordinary ability or achievement” in several identified fields to receive a visa to temporarily visit the United States. It’s important to note that the O-1 is a non-immigrant visa. It does not allow for permanent residency (or issuance of a Green Card to the immigrant) in the United States. A major benefit, however, is that it is a dual-intent visa. So, if the O-1 visa holder wishes to pursue permanent residency status by applying through another visa program, it does not disqualify her O-1 status. This is certainly not the case for all non-immigrant visas.
The visa program, like most of the immigrant and non-immigrant visas, is managed by the United States Citizenship and Immigration Service (USCIS). USCIS officers make the determination of whether the individual is eligible for an O-1 visa and whether the criteria for acceptance are met by an O-1 applicant.
In this article, we discuss the various requirements for demonstrating “extraordinary ability” under this program.
What is “Extraordinary Ability” for O-1 Visa Purposes?
The applicable regulation specifically defines the term “extraordinary” as,
“demonstrating a level of expertise or distinction indicating that the person is one of a small percentage who has risen to the very top of the field of endeavor.”
This is a very qualitative definition, as is thus subject to subjective interpretation of what is extraordinary. To aid in the interpretation of this standard, the USCIS provides numerous examples of evidence substantiating an applicant’s extraordinary ability. These examples are as follows:
• National or international (prestigious) awards or prizes. Some examples include the Fields Medal, Nobel Prize, Grammy, Emmy, etc.
• Member status in highly elite (exclusive organizations or societies) for your discipline or field.
• Highly regarded scholarly publications or recognition research within peer-reviewed journal or other industry publications.
• Any other form of publication (regardless of the medium) that demonstrates a high level of achievement, ability, or status.
• Serving a leadership post or prominent role in an elite organization.
• Extremely high salary as compared with other professionals in your industry.
• Holding the role of lead actor in a highly recognized or renowned public work.
This list is certainly not exclusive. Any industry or field of work may have its own demonstrable achievements, awards, etc., that demonstrate exceptional ability in the field. This begs the question, what fields are eligible for the O-1 petition?
What Fields or Industries are Eligible for O-1 Visa Applicants?
An O-1 applicant most demonstrate that she has extraordinary ability in one of the following fields or disciplines:
Science - This is generally assumed to be hard sciences, rather than social sciences.
Education - Generally an important position in Government or private educational institutions.
Business - This is generally reserved for executives or company founders.
Athletics - This is reserved for professional-level or nationally-recognized athletes. This could include amateur participants in olympic or international competitions.
Arts (Note: Extraordinary ability in the arts includes motion picture or the television industry.)
These visas are routinely employed by renowned researchers, executives, athletes, film producers or actors, musicians/composers/conductors, painters, sculptors, etc. Of course, the statute does not place specific limitations on the specific type of career professional that can apply for this visa. The fields of science, education, business, athletics and arts can be broadly construed. This visa is commonly used by all sorts of professionals that are tangentially related to these areas of professional practice.
What are the Required Steps to Secure the O-1 Visa
The generally steps for securing the O-1 visa are as follows:
Petition - An employer or agent must generally file the O-1 visa on behalf of the applicant. The application is Form I-129. It is possible, however, for the applicant to self petition. The petition must be filed no less than 45 days prior to travel and no more than 12 months prior to the travel date. The petition will generally include several components:
• Travel Itinerary - As discussed, the O-1 visa is a non-immigrant visa. There must be a demonstration of the intent to return to the home country. As such, the traveler should include an itinerary that demonstrates where the individual will travel while in the country. There should be some indication of the work the applicant will undertake during her time in the United States. There should be some plan for the applicant to undertake work in their field of expertise or achievement.
• Employer Contract - If the purpose for the visit is to undertake work with a US company or other professional in the field of achievement, this information will need to be included. Having a legal agreement demonstrating that the individual of exceptional ability is contracted to continue her work in the US is the best form of evidence. It does not have to be a traditional employer-employee relationship. The relationship can also be client-independent contractors.
• Consultation - In support of the application, the applicant should include a “consultation”. This is “a written advisory opinion from a peer group or person with expertise in the beneficiary’s area of ability.” This is applicable generally to career paths or fields that have an active peer group. The USCIS has the ability to waive the requirement for a a consultation if there is no identifiable peer or professional group for the individual.
• Interview - The applicant will have to undertake an interview at the US consulate office where the applicant is applying for the visa. The interview is generally used to verify certain information about the purpose and plans for travel. The standard is to convince the consulate officer that the applicant intends to undertake the specified activity during the visit and return to the country of origin at the end. The applicant must bring a copy of the application and an approval letter (for the interview) from the USCIS. The applicant should receive this letter in the mail once the application is reviewed. The role of the US consulate officer is to make certain everything in the application checks out. She retains the authority to deny the visa, even after the application approval has been granted. If approved, the consular officer will stamp the passport of the foreign individual and provide any other necessary paperwork, allowing the individual to travel to the United States in accordance with the USCIS approval.
• Form I-94 - The issuance of the visa, along with a valid passport, will allow the applicant to travel to the Untied States. Upon arriving at the border, the applicant will be required to demonstrate the visa paperwork and visa stamp to the United States Customs and Border Protection Service (USCBPS). The USCBPS will issue a form I-94, an arrival and departure record for visa holders visiting the United States. This document will be used in the future if the applicant seeks and extension of stay or a modification of the original visa application.
The O-1 visa, unlike some other non-immigrant work visas, does not require that the employer located in the United States complete a labor certification. This is based upon the nature of the O-1 visa. An individual with exceptional ability or distinguished in the industry among her peers is not likely to displace a US worker.
Once the application is filed, the applicant must wait 2-3 months for processing. This is in addition to the time required for the consular interview. The processing period can be expedited by paying a $1,225 fee for premium processing. This cuts the waiting period down to 15 days.