O-1 Extraordinary Ability Nonimmigrant Visa

Q: What situations are appropriate for an O-1 Nonimmigrant Visa?

A: The O-1 visa is for foreign nationals of extraordinary ability in the sciences, arts, education, business or athletics (the O-1A visa) or extraordinary achievement in motion picture or TV production (the O-1B visa). A great many occupations will fit into these categories, and U.S. Citizenship and Immigration Services has traditionally taken a very broad view of which occupations are suitable for an O-1 visa - especially under the O-1A category.

The larger question with regard to appropriate situations for the O-1, we shall see below, is not so much an individual's field but how far one has advanced in that field.

Q: What does "extraordinary" mean?

A: Admittedly, "extraordinary" is a somewhat vague term, and at first would seem difficult to define. For an O-1A, a foreign national must have demonstrated sustained national or international acclaim. For an O-1B, a foreign national must have a demonstrated record of extraordinary achievement, as demonstrated through extensive evidence.

Q: How does one prove that they are "extraordinary" within these definitions?

A: There are slightly different standards depending upon the field and type of O-1 sought, but for any type of O-1 the documentation will need to be substantial and include testimonials from others with knowledge of the field attesting to the extraordinary nature of the beneficiary's skills.

For O-1As seeking classification as extraordinary in the sciences, education, business or athletics, extraordinary ability may be demonstrated either by receipt of a major internationally recognized award such as the Nobel Prize or (more realistically) by meeting three out of eight possible criteria which are viewed as indicative of extraordinary ability (for instance, coverage of accomplishments in the major media or receipt of a high salary).

For those seeking classification as extraordinary in the arts, the requirements are similar: receipt of or nomination for a major national or international award or meeting at least three out of six criteria (these are similar but not identical to the criteria for the sciences, education, business or athletics).

For O-1Bs seeking that classification on the basis of extraordinary achievement in the motion picture or television industry, the criteria are essentially the same as for O-1As in the arts (although U.S. Citizenship and Immigration Services tends to require a higher level of demonstrated achievement for this category).

All O-1 applications are in theory required to have advisory opinions from an appropriate union and sometimes a management group. This requirement is excused where no union or trade group exists for a profession, and in the sciences and business fields this is often the case.

Because of the quantity and caliber or evidence required to convince USCIS to grant O-1 status, the O-1 is often appropriate only where an individual has advanced to a point in their career where a sufficient number of the above factors are met, and sufficient professional contacts have been made so that the required letters will later be obtainable.

Q: Because of the nature of what I do, I need another individual to assist me and frequently work with the same person - will this person be able to accompany me?

A: Normally, yes. An O-2 visa is for someone accompanying an artist or athlete to assist in the artistic or athletic performance. The O-2 must be an integral part of the actual performance and have critical skills and experience which are fairly specific to the performance and which could not be performed by others. There are special rules for O-2s in motion picture or television production, and any O-1 must be prepared to demonstrate that they have a foreign residence which they have no intention of abandoning.

Q: Can I apply for permanent residence while here an O-1 visa?

A: Yes. While the O-1 is not specified as a "dual-intent" visa like the H-1B or L-1, there is no requirement that the O-1 visa holder maintain an overseas residence and no standard of nonimmigrant intent is applied to those seeking O-1 entry - so an O-1 visa holder can apply for permanent residence. This is not true of O-2 holders, who must demonstrate that they will maintain an overseas residence.

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The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.