O-1 Visa or Status Questions
What is O-1 visa?
The O-1 visa is a non- immigrant employment-based visa classification for foreign nationals who can demonstrate the sustained national or international acclaim and recognition for achievements in the sciences, education, business, or athletics. It requires the employer file a petition for a nonimmigrant worker, along with evidence of the individual's extraordinary ability.
The individuals must have “extraordinary ability” in the field of expertise. Such ability must be extensively documented.
The O-1 visa is also available to those in arts, motion pictures and television who can demonstrate a record of “extraordinary achievement”. The USICS interprets the statute very broadly to encompass most field of creative endeavor. The person entering the US must be coming to work in their field of ability.
An individual seeking an O-1 visa must have a sponsor. This means that the visa is employer specific and a job offer is needed.
2. What are the O-1 qualifications?
The employment must be in a capacity that requires the extraordinary ability. The job offer letter must state the nature of the events or activities in which the individual will be engaged, and it must specify the dates, for which work authorization is being requested; no more than three years on initial applications, one year on all subsequent petitions.
The evidence should consist of at least three of the following:
i) Documentation of the alien's receipt of nationally or internationally recognized prize or awards for excellence in the field of endeavor.
ii) Documentation of the alien's membership in associations in the field, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
iii) Published material in professional or major trade publications or major media about the alien, relating to the alien's work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation:
iv) Evidence of the alien's participation on a panel, or individually, as a judge of the work of others in t he same or in an allied field of specialization;
v) Evidence of the alien's original scientific, scholarly, or business-related contributions of major significance in the field;
vi) Evidence of the alien's authorship of scholarly articles in the field, in professional journals, or other major media
vii) ;Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation; or
viii) Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.
To supplement these materials, employer may submit letters signed by experts in the applicant's field attesting to the applicant's extraordinary ability in that field.
3. What is the advisory opinion?
Before an O-1 visa can be granted, the applicant must go through a special consultation process. The applicant must get an “advisory opinion” from a peer group (a group of professionals in the alien's occupation or profession) or from a union, labor, or management organization. An “advisory opinion” is a letter from an organization stating that the position the applicant will hold requires extraordinary ability.
4. What if there is no appropriate union exists in the case of arts?
Consultation with an appropriate peer group, labor and/or management organization regarding the nature of the proposed work and the beneficiary's qualifications is mandatory before an O-1 petition can be approved. This requirement may be especially important in the arts, entertainment fields, or athletics.
Advisory consultations are labor consultations, unless no appropriate union exists. In this situation, employers may submit an advisory opinion from an individual expert in the field, a peer group, or management organization that describes the beneficiary's ability and achievements, the nature of the duties to be performed, and whether the services require someone of extraordinary ability.
5. Can the individual work for more than one employer?
The answer is yes. If the individual works for more than one employer at the same time, each employer must file a separate petition with the USICS.
6. What will happen if the employment of the O-1 holder is terminated?
If the employment is terminated for reasons other than voluntary resignation, the employer is liable for the reasonable cost of return transportation of the individual to his/her last place of residence prior to entry into US.
7. What if the O-1 visa applicant has a permanent labor certification or has filed a preference petition for permanent residence?
Regulation states that the approval of a permanent labor certification or filing of a preference petition for permanent residence shall not be a basis for denying an O-1 petition, a request to extend such a petition, or the alien's application for admission, change of status, or extension of stay.
8. How long can one maintain O-1 status?
There is no maximum period for O-1 status. Theoretically, it can be indefinite. However, the length of the status is determined by the length of time needed for the alien to perform his/her duties or activities with the US employer.
An initial stay is limited to no more than three years, provided the petition can establish that the O-1 alien will need this much time for the proposed employment. This period may be extended at one-year increments thereafter, upon evidence showing that the alien's continued presence would be required. An O-1 visa can be extended on a yearly basis for an indefinite period. The Form I-129 is to be filed by the employer to seek extension. Through the application for an extension does not include a consultation, it however requires a statement of the reason for an extension.
9. What type of visa will family members hold?
The spouse and unmarried children under the age of twenty-one may apply for O3 visa or status, in order to accompany the O-1 visa holder to the US. The O3 visa status does not confer authorization for employment in the US. 1
10. What is the O2 visa?
An O2 visa can be obtained for those accompanying the O-1 visa holder who will assist the O-1 alien in their performance. To qualify for an O2 visa, the applicant must meet the following requirements:
- Have a vital role in the central performance
- Have essential skills and a wealth of experience that is above average standards;
- Have a committed professional association with the O-1 visa holder;
- Must prove the possession of a foreign residence, which will not be abandoned. A specific date of exit should also be expressed. Must gain a labor consultation from the Labor Organization.
Evidence must be submitted to establish the applicant's essential role, and that they have skills and experience not possessed by an immediately available US worker.
11. What is the extension of stay for O3 Visa?
The dependents of O-1 or O2 visa holders are allowed to stay till the time the principal applicant accomplishes the task. The dependent has to file a petition on the Form I-539 for an extension. The extension is given in yearly increments. Since the O-1 and O2 visa is employer specific, and O3 visa holder are the dependents, i.e. the spouse and unmarried minor children of the O-1 visa holders.
12. I am in J-1 status subject to the 2-year home country residence requirements. May I apply for O-1 status in U.S. to continue my research project?
As a J-1 holder, you can change to O-1 visa, but you have to apply for an O-1 visa from a U.S. Consulate abroad, because you may not change to a Nonimmigrant status in the U.S. before you satisfy the two years home country residence requirement or obtain a waiver to the requirement.
Your employer needs to file an O-1 petition. Once the O-1 petition is approved, you need to apply for O-1 visa at a U.S. consulate abroad. After you obtain an O-1 visa, you can enter the U.S. without fulfilling the two year residency requirement or getting a waiver of the requirement.
13. What if the O-1 visa applicant has a permanent labor certification or has filed a petition for permanent residence?
USICS regulation states that the approval of a permanent labor certification or filing of a preference petition for permanent residence shall not be a basis for denying an O-1 petition, a request to extend such a petition, or the alien's application for admission, change of status, or extension of stay.
14. As an employment related nonimmigrant status, what is difference between O-1 and other employment related nonimmigrant status, like H-1B?
O-1 Status is distinguished from other employment related statuses in that it applies to more types of work than other areas. For instance, H-1B status is limited to foreign professionals with at least a bachelor's degree for a specialty occupation, which cannot apply to alien athletes or entertainers without such educational background. However, such as athletes or entertainers can apply for O-1 status. Moreover, the requirements of O-1 are much higher than that of H-1B. Also, O-1 status could be obtained by those in H-1B status who have exhausted the full-authorized stay.