The O-1 visa was established by Section 101(O)(i) of the Immigration and Nationality Act and allows persons of extraordinary ability in the arts, sciences, education, and athletics to enter the U.S. under nonimmigrant O-1 status. Persons in the television or motion picture industry may also qualify if they can show that their work has brought them national or international recognition. In order to qualify, the person must provide evidence to substantiate their extraordinary ability or achievement.
The O-1 visa consists of two categories: the O-1A visa and the O-1B visa. The O-1A visa is designed for individuals with extraordinary ability or achievement in the athletics, business, education, or sciences, whereas the O-1B visa is designed for individuals that possess extraordinary ability or achievement in the arts or television and film industry.
O-1 Visa Requirements:
In order to qualify as a person of extraordinary ability, the applicant must demonstrate that they have risen above others in their field to the point where they have gained national and international recognition for their work. They must also show that they are coming to the United States for a temporary period of time in order to continue work related to their field of expertise.
In the fields of athletics, business, education, and science, extraordinary ability refers to a great level of expertise, in which the applicant falls within the top few percent of individuals in their respective field.
In the fields of arts, extraordinary ability refers to distinction. The applicant must show that they have a much greater level of skill and recognition than the majority of individuals in their respective field, indicating that they can be described as a leading or prominent individual in the arts.
In the field of the television and film industry, extraordinary ability refers to a skill or recognition that far exceeds that normally found in the industry. The person must be described as outstanding, notable, or a leader in their field.
O-1 Visa Application Process:
To apply for an O-1 visa, the petitioner must file Form I-129 Petition for Nonimmigrant Worker. The petition must be filed within a year of the alien’s need of coming to the United States. In order to ensure that the visa is approved in the appropriate time period, one should file Form I-129 at least 50 days before the alien is to continue their work in the United States.
O-1 Visa Consultation Requirement:
- The applicant must provide a written advisory opinion from a peer group related to their field of expertise, or from an individual selected by the peer group that also has expertise in the field. The advisory opinion may also come from labor organizations
- In the case of applicants with expertise in the television or film industry the consultation may come from a labor union or other organization with expertise in the respective field
Waiving of the O-1 Consultation Requirement:
The consultation requirement may be waived if the petitioner can show that the suitable organization does not exist. In this case, the petition will be solely based on the evidence provided by the petitioner. In the case of the arts, the consultation requirement may be waived if the individual reenters the United States within 2 years of having a previous consultation. In this case, the petitioner should include a copy of the previous consultation along with a waiver request.
O-1 Visa Contract between the Petitioner and the Beneficiary (person of extraordinary ability):
A written agreement or contract between the petitioner and the beneficiary (person of extraordinary ability) must be provided with the I-129 Petition for Nonimmigrant Worker. An oral agreement may be included instead of a written agreement or contract. The oral agreement may consist of emails, written documents regarding the terms of the agreement, and other correspondences between the petitioner and beneficiary that verifies than an oral agreement was made between the parties. The terms and conditions must include what both parties agree to by entering into the agreement.
O-1 Visa Agents:
An agent may be used in the O-1 visa process. The agent can be the employer, represent the petitioner/employer, represent the beneficiary (person of extraordinary ability) or both.
In the case where the person of extraordinary ability will be working in the United States under multiple employers, an agent can act as the petitioner and represent the other employers. In this case, the agent can file the I-129 Petitions for the multiple employers.
If the agent is to act as the petitioner for the multiple employers, the agent must include the following information with the I-129 petitions:
- Documentation specifying the dates, events, and venues in which the person of extraordinary ability will participate in activities related to their field of expertise. The agent must include the names, addresses, and other information on the employers within the time periods specified, as well as the names and addresses of the venues in which the activities will be performed
- Contacts or Agreements between the beneficiary and the specified employers
- The agent must include an explanation of the terms and conditions of each of the provided contacts or agreements between the beneficiary and the actual employers
After the I-129 petition is approved, the person of extraordinary ability may travel to a U.S. embassy or Consulate in order to obtain their visa.
O-1 Visa Agents Acting as Employer:
In O-1 cases where the agent acts as the employer of the person of extraordinary ability, the agent must include the following information with the I-129 petition:
- An agreement between the agent and the person of extraordinary ability (beneficiary) indicating the wage that is being offered by the agent, as well as the terms and conditions of the agreement. A summary of the terms and conditions of an oral agreement or a written contract between the two parties will suffice
- In cases where the person of extraordinary ability will be performing their services in more than one location, the agent must provide a complete itinerary that contains the dates, locations, and venues in which the services are to be performed. If the agent is to act as the employer, an itinerary is absolutely necessary. It is best to include as much information as possible. The USCIS ultimately decides whether the itinerary requirement is met. The itinerary should conform to the industry standards.
O1 Visa Contract/Agreement:
Based upon the provided contract or agreement with the I-129 petition, the USCIS will ultimately determine whether the agent is acting as the employer or whether the agent is representing the employer, multiple employers, the beneficiary, or a combination thereof. Therefore the contract should specifically include the relationship between the beneficiary (person of extraordinary ability) and the agent, including but not limited to how, when, and the amount that the agent will be paid.