Non-Immigrant Visas - O-1 Extraordinary Ability
The O category is for companies that wish to employ people who have demonstrated extraordinary ability in the sciences, arts, education, business, or athletics. The sponsor or employer submits a petition on the individual’s behalf with the USCIS Service Center with jurisdiction over the individual’s place of employment. The initial grant of stay is for 3 years. No numerical cap is placed on the annual admission of these individuals. There is no outside limit on the amount of time an individual may have the status.
The law establishes three different standards for the O-1 category: (1) the most exacting standard applies to aliens in the sciences, education, business, and athletics; (2) a much less rigorous standard applies to individual aliens in the arts; and (3) an intermediate standard applies to aliens of extraordinary achievement in the motion picture or TV industries.
With regard to the first group (aliens in the sciences, education, business, and athletics), the USCIS rules provide that only a person who is one of the small percentage who have risen to the very top of his or her field of endeavor qualifies for this type of extraordinary ability. To qualify for O-1 status, the foreign national must demonstrate sustained national or international acclaim and recognition for achievements in the field of expertise. Specifically, he or she could provide evidence of receiving a one time award of recognized international significance. The example given in regulations is a Nobel Prize but practical experience suggests that lesser but prominent awards will suffice.
If the individual does not possess such an award, the individual would have to produce at least three of the following types of evidence to demonstrate that he or she is of sustained or international acclaim:
- Receipt of lesser national or international prizes or awards;
- Membership in an association in the field for which classification is sought which requires outstanding achievement of their members as judged by recognized national and international experts;
- Published material about the person in a professional or major trade publication or other major media;
- Participation as a judge of the work of others;
- Evidence of original scientific, scholastic, artistic, athletic or business related contributions of major significance;
- Authorship of scholarly articles in professional journals or other major media;
- Current or previous employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation; and
- Past or proffered high salary or other remuneration for services, evidenced by contracts or other reliable evidence.
In addition to the above, the regulations permit one to produce any other type of evidence that could potentially document national or international acclaim.
For the arts, the individual is held to a lower standard, and instead of demonstrating that he or she is one of the few to rise to the top of the field, must only demonstrate “distinction”, which is defined 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.”
Further, to qualify as an alien of extraordinary ability in the field of arts, the foreign national must be recognized as being prominent in his or her field of endeavor as demonstrated by evidence that the foreign national has been nominated for, or has been the recipient of, significant national or international awards or prizes in the particular field such as an Academy Award, an Emmy, a Grammy, or a Director's Guild Award.
Should the individual not have been nominated or received such an award, he or she would need to provide at least three of the following forms of documentation:
- Evidence that the alien has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications contracts, or endorsements;
- Evidence that the alien has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications;
- Evidence that the alien has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials;
- Evidence that the alien has a record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion picture or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications;
- Evidence that the 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. Such testimonials must be in a form which clearly indicates the author's authority, expertise, and knowledge of the alien's achievements; or
- Evidence that the alien has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence.
In addition to the above, the regulations also permit one to submit “comparable evidence” that may document national or international acclaim.
Along with objective evidence of acclaim, it is also helpful to obtain affidavits or letters from industry leaders attesting to the individual’s specific outstanding contributions within the field and his or her reputation nationally and internationally.
In addition, in order to qualify for the O classification, an advisory opinion or consultation must first be obtained from a related organization in the field, such as a peer group, labor organization, or management organization. If a union has a collective bargaining agreement in the field, that is the appropriate union with which to consult. If there is no collective bargaining agreement, a union or organization with expertise in the field is appropriate. A consultation may consist of the organization’s opinion regarding the nature of the proposed work and the individual’s qualifications. A simple letter of “no objection” from the organization would also be accepted. If there are no such organizations or unions in the field, the consultation requirement is waived.
If an individual meets the requirements above, a petition would be submitted with USCIS along with supporting documentation to evidence the sponsored individual’s qualifications. Processing times vary depending upon the USCIS Service Center where the petition is filed, but do not generally exceed 60 days. Premium processing, whereby for an extra $1,225, USCIS guarantees to work on the petition within 15 calendar days (barring any requests for additional information) is also available.
Please contact us or schedule an initial consultation for further information.