The O-1 Visa program is a very popular visa program for highly-successful, nationally-recognized individual. The O-1 provides an option for foreign individuals of “exceptional ability” to come and work in the United States. This program, like most all of the other visas, is managed by the United States Citizenship and Immigration Service or “USCIS”. The USCIS is charged with reviewing applications and making determinations regarding the visa grant.
While the O-1 is extremely popular, there are some limitations to the O-1 visa. The most notable limitations include the type of work, the ability of the foreign individual, the time period that the visa lasts, and the permanent immigration intent of the foreign individual. Each one of these is discussed in turn in the material below. Most notably, we discuss in great detail what the applicable time period for the O-1 Visa (how long the O-1 visa will allow the holder to remain in the United States).
To Whom Does the O-1 Visa Apply?
The O-1 visa is for individuals who can demonstrate “extraordinary ability” in one of the following fields: Science, Education, Business, or Athletics, or Arts (including the motion picture or television industry). These categories have generally been interpreted quite broadly. “Extraordinary” is defined 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.” As such, the visa is generally only available to specific types of career professionals, such as: researchers, executives, athletes, film producers or actors, musicians/composers/conductors, painters, sculptors, etc. Of course, other professional positions in the above-referenced fields would equally qualify.
Time Period for the Initial Issuance of the O-1 Visa
The O-1 Visa provides the applicant the ability to work in the United States for a period of time that corresponds with a work-related event or activity. The Law defines and activity as:
An activity such as, but not limited to, a scientific project, conference, convention, lecture series, tour, exhibit, business project, academic year, or engagement. Such activity may include short vacations, promotional appearances, and stopovers which are incidental and/or related to the event. A group of related activities may also be considered to be an event. In the case of an O-1 athlete, the event could be the alien’s contract.
The maximum period for the initial grant of an O-1 visa is 3 years. Of course, the visa duration may be shorter if the activity or event does not require the individual’s presence for the entire 3 years. The visa can also be extended. The process and reasons for extension are discussed further below.
How to Substantiate the Time Period for the O-1 Visa
The O-1 visa petition must include several additional pieces of information, as follows:
Petition – The petition itself will require all of the personal and professional information of the applicant. It will also provide the opportunity for the individual to list and provide substantiation for her exceptional ability.
Note, the petition must generally be filed by an employer or agent of the foreign individual. This is because of the nature of the visa. If the visa is tied to work (or work-related event) in the United States, the employer or agent in the United States must provide justification for why the individual of exceptional ability should be needed or should be allowed to take part.
In addition to the petition, the applicant will attach the following documents that are relevant to the period of stay:
Itinerary – An itinerary states the work will be pursued or to be accomplished during the foreign individual’s time in the United States. The itinerary or work plan should demonstrate this intent or purpose behind allowing the individual to stay in the United States.
Employer Contract – Because most of these visas relate to an identified course of work (such a research), the agent or employer should provide evidence that that applicant has been contracted to take part in that work. This can be a traditional employment contract, a work-related grant, or other similar legal relationship.
These two documents can work together to substantiate the period for which the visa should be granted. If the itinerary or contract clearly demonstrate that the work objectives will last for three years or more, then the visa will be processed for the maximum, 3-year period. If, however, the itinerary or employment contract cannot support the entire 3-year period, the visa will be granted for an amount of time that reasonably allows the individual to take part in the work, including the calculation of travel and moving time. The visa will normally grant 10 days before the event or start of work and last until 10 days afterward.
Petitioning For Extension or Renewal
As discussed, the O-1 visa is limited to a maximum of 3 years. Fortunately, the regulations allow the foreign worker to petition for extension of the visa. It is the agent or employer who files for the extension. As with the original application, the extension must be based upon the need to continue to perform the work or duties for the employer in the individual’s field of expertise. The visa can be extended in 1-year increments. This means that the foreign individual will need to file a petition for extension in a timely manner each year of the extension.
The application for extension is very similar to the original petition. The difference is that the employer does not need to provide many of the supporting documents, such as an itinerary. The employer simply need to explain why she is requesting and extension and how it is related to the job performance or completion.
Importantly, if the employer petitions for extension for a new position, she must file a new petition (form I-129). This is true as well if a new employer files a petition for the foreign individual. Both of these cases are considered new “events” for purposes of the visa application. As such, the entire process for applying for the visa must be completed anew. The benefit is that the granted visa will be for up to a three-year period.
The spouse or defendants of the foreign individual who accompany her on the stay in the United States must also file for a visa extension. This is done by filing form I-539 (along with all supporting documents) with the USCIS.
Unfortunately, just because the original O-1 petition was granted does not mean that the visa extension will be granted.
Does the O-1 Visa Allow the Holder to Apply for a Green Card?
A major limitation of the O-1 is that it is a non-immigrant visa. That is, the visa itself does not lead to or result in permanent residency in the United States (I.e., the issuance of a green card). Luckily, the O-1 is a “dual-intent” visa. This means that the holder can apply for other visas or green-card programs while in the United States on an O-1 visa.
The most common green-card visa sought by O-1 visa holders is the EB-1. Like the O-1, the EB-1 applies to individuals who have “exceptional ability” in a given field. The allowable fields for the EB-1 are more limited that than the O-1.
Notably, the EB-1 only applies to researchers or professors, and executives and managers of multi-national companies who can demonstrate exceptional ability in their fields. Individuals in the arts and sciences (other than researchers or professors) cannot depend upon the EB-1. As such, it is advisable to begin looking at all categories of available visa.
LawTrades Know Immigration Law
Navigating the array of immigration laws is a difficult undertaking. It is not advisable to undertake the visa application process without the assistance of a trained legal professional. The immigration lawyers at LawTrades are experts in all matters of immigration law. They can provide you the guidance and services you need to successfully navigate your O1 Visa process.