The O1 visa application process is designed to accommodate nonimmigrants of extraordinary abilities or achievements. It is important to understand that not every “extraordinary individual” will qualify for O1 visa status. In order to be eligible for approval, U.S. Citizenship and Immigration Services requires an applicant to have an “extraordinary ability in the sciences, education, business, athletics” or the arts. Candidates for an arts-based O1 visa will petition for an O1B visa, while other eligible individuals will petition for an O1A visa. Individuals seeking to accompany O1 visa holders to the U.S. in a support position for a specific event must explore the requirements for an O-2 visa. Spouses and children of O1 and O-2 visa holders may enter the U.S. if they qualify for O-3 visa status.
Talent and Timing
Unlike the H1B visa process, which accommodates foreign professionals with highly specialized knowledge, the O1 visa process specifically applies to foreign individuals at the top of the fields of athletics, business, science and education who have sustained acclaim at the national level and/or international level. Artists “of distinction” are also eligible for approval under this process. As this is a nonimmigrant visa process, it is important to understand that approval will grant an applicant permission to enter the U.S. for continued work in their field for a limited period of time.
Petitioning for an O1 Visa
Within 365 days of an individual’s desired date of entry into the United States (but at least 45 days before an individual will be employed in the U.S.), a Form I-129, Petition for Nonimmigrant Worker should be filed with the American government. This form is complex and requires a substantial amount of documentary evidence. As a result, it can be helpful to consult an attorney experienced in employment-based immigration matters before filing an O1 visa petition.
In addition to the primary visa application form, an individual will need to submit evidence of consultation (unless the individual is subject to an exception), an employment contract, an itinerary and an agent. A consultation usually occurs in the form of a written opinion from a peer group associated with the applicant’s field of ability.
Because O1 visa holders enter the U.S. in order to continue work within their fields of extraordinary ability, they must secure proper employment contracts before submitting their petitions. An employer should be able to provide a contract outlining the terms of employment and other relevant details that may then be included in an O1 petitioner’s visa application.
U.S. Citizenship and Immigration Services also requires a detailed itinerary and relevant dates of the applicant’s employment in the U.S. Finally, a U.S. employer or representative must generally be designated as an agent for the purposes of the O1 visa application process. Depending on the nature of the work that an applicant will be involved in, numerous U.S. citizens or residents may be eligible to serve as an agent associated with an individual’s petition.
It is worth noting that all of these general areas of documentary evidence may be subject to additional, nuanced criteria. It is for this reason that applicants should strongly consider speaking with an attorney before filing their petitions. Failure to gain visa approval within the limited window allowed by U.S. Immigration agencies may result in an inability to enter the United States in time for your employment-related engagement(s).
Evidentiary Criteria for O1A and O1B Applicants
In addition to the application form and the documentation mandates already mentioned, petitioners must submit evidence of criteria for eligibility. Because the O1 visa process only applies to certain nonimmigrants at the top of their fields, U.S. immigration agencies require certain evidence in order to determine that an individual meets this description as defined by law.
For example, O1A applicants are required to submit three separate evidentiary supplements in order to prove their extraordinary abilities and acclaim. This evidence may come in the form of memberships in one’s eligible field which require outstanding achievements before one may join, receipt of significant prizes for excellence in an eligible field, a substantial salary as outlined in contracts, significant employment in an organization or entity with distinguished reputation, etc. There are a host of other ways that an O1A applicant may prove acclaim and extraordinary ability, so it is important to discuss any evidence you may possess in this respect with your attorney.
Similarly, O1B applicants are also subject to evidentiary criteria for which they must produce relevant evidence. In order to prove distinction and extraordinary ability in the arts, an individual may submit evidence of certain awards, achievements or performances in and of themselves. For example, being awarded and/or nominated for a significant award in an eligible field, such as a Grammy, BAFTA, Oscar, Emmy, etc. may be used as evidence. As may a leading performance in a critically acclaimed production, a leading performance tied to an organization with a distinguished reputation or achieving recognition through critical reviews published by distinguished publications, etc.
It is worth noting that other immigrant and nonimmigrant visa options may be available to those individuals who do not meet the criteria for the O1 process. Employers may sponsor workers through a number of other mechanisms and non-employment-based visas may also be available under certain circumstances. Speaking with an attorney experienced in U.S. immigration matters will help you to determine which legal avenues are open to you based on your unique situation.
Employment-Based Immigration Assistance Is Available
If you are interested in securing an O1 visa or serving as an employer/agent during the O1 visa process, please consider reaching out to the team at LawTrades. We have extensive experience guiding both foreign nationals and U.S. employers through the visa application process. In addition, we provide affordable and efficient services related to the drafting of employment contracts and recruitment of top talent for businesses of all kinds. Whether you are seeking to participate in temporary employment opportunities in the U.S. or seeking to provide such opportunities, the team at LawTrades will be happy to assist you with your legal needs.