The O1 Visa program (managed by the United States Citizenship and Immigration Service or “USCIS”) is a non-immigrant visa provided to foreigners of extraordinary ability or achievement in specific fields. “Non-immigrant” means that the visa does not result in the issuance of a green card or permanent residency in the United States. Fortunately, the visa is a “dual-intent” visa. This means that an individual applying for the visa may have the dual intent of applying for a permanent green card under a separate immigration policy or program.
The areas where the visa applicant will need to show extraordinary ability include Science, Education, Business, or Athletics, or Arts (including the motion picture or television industry). The regulation defines “extraordinary” 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.” These visas are routinely employed by renowned researchers, executives, athletes, film producers or actors, musicians/composers/conductors, painters, sculptors, etc.
The above definition still leave open for interpretation the extent to which an individual must demonstrate extraordinary ability or achievement. The USCIS provides the following examples for demonstrating extraordinary ability:
Prestigious national or international prizes, such as a field medal, nobel prize, Grammy, Emmy, Tony, Etc.
Membership in the most elite and exclusive organizations in your field.
Scholarly publications or research output that demonstrate extraordinary accomplishment.
Other literary publications (journals, magazines, newspapers, showing a level of achievement).
Holding a prominent role in a prominent organization.
Large Salary demonstrating exceptional ability.
Being a lead performer in a recognized or renowned public work.
The above list are just examples of the evidence that could demonstrate exceptional ability and achievement. Naturally, this is a very difficult visa to obtain, as the standard for extraordinary ability or achievement is limited to few individuals.
Steps Associated with the O1 Visa
The amount of time that it will take from the time of application to the granting of the visa depends upon a number of factors. To understand what factors go into determining the processing time, it’s important to first understand the various steps in the application process. The steps are as follows:
Petition – Like all visa applications, the O1 visa begins with filing an application. Some visas require the employer to file an application to initiate the process. Generally, an employer or agent files the O1 visa on behalf of the foreign individual. It is possible to self-petition for the visa, but that makes the process more difficult. Remember, the idea is that the extraordinary individual will continue their endeavors within the United States during her stay. There should generally be a purpose or plan for the time spent in the US. The petition must include several documents:
Itinerary – What work will be done or what is hoped to be accomplished during the time in the United States. Remember, the applicant is coming to the United States in pursuit or continued pursuit of work in their field of distinct achievement. The itinerary or work plan must demonstrate this intent.
Employer Contract – There should be written evidence that a legal agreement exists between the individual of extraordinary ability and a US employer seeking to employ that individual while in the United States. The relationship can be employer-employee or client-independent contractors. This substantiates the purpose of the visit.
Consultation – A “consultation” is a procedural term defined as, “a written advisory opinion from a peer group or person with expertise in the beneficiary’s area of ability.” For example, a scientist may include a consultation from other renowned scientists in the field. It is natural that some other fields may not have a peer group or other individuals with sufficient expertise or recognition to make this endorsement. If so, the foreign individual must produce evidence of this fact. In such a case, the USCIS may waive the requirement to include a consultation.
The next step in the process is to actually file the petition with the USCIS. The petition can be filed up to 1 year prior to the anticipated date of travel to the United States. The petition must be filed a minimum of 45 days prior to the date of intended travel.
The next step involves an interview at the United States consulate located in the country from which the foreign individual is applying. This must generally be the individual’s country of citizenship. Once the petition is approved by the USCIS, the individual will receive the approval notice in the mail. The notification will instruct the foreign individual on the process for arranging or confirming an interview at the US consulate. Bring a copy of the application and the approval letter to the interview. The purpose of the interview is to make certain the information contained in the application and petition are true and accurate. This is a safety precaution. The interviewer (an immigration officer) at the US consulate retains the authority to deny the visa, even after the application approval has been granted. The US consulate will generally stamp the passport of the foreign individual, and provide any other necessary paperwork, allowing the individual to travel to the United States in accordance with the USCIS approval.
At the time of entry, the United States Customs and Border Protection Service will issue a form I-94. This is the arrival and departure record for visa holders visiting the United States. This document will have an entry and required exit date. This document becomes very relevant at a later date if applying for extensions of stay or modification of the original visa application.
What Processing Time Should I Expect from the Time of Application to Final Approval to Travel
Unlike many other types of visa application, the processing time for the O1 visa is relatively short in comparison. The longest part of most visa applications is the Labor Certification Application that an employer must perform prior to petition for the foreign worker to travel to the United States. The purpose of the labor certification is to demonstrate that the individual is meeting current employment needs or demands within the United States. Fortunately, the O1 visa application does not require a labor certification. The idea that the individual has exceptional ability or achievement in a field demonstrates that there are likely few if any individuals in the United States who would be negatively affected or displaced from employment by the foreign individual visiting.
Once the employer files the form I-129, it generally takes the USCIS 2-3 months to review the petition. This will vary based upon the USCIS processing center charged with reviewing the application. If the employer (or the foreign individual) does not have 2-3 months to wait on the I-129 to be process, there is an option to speed up the process. The applicant has the option of paying for premium processing. There is a $1,225 fee for this option. Premium processing allows the petition to be reviewed within 15 days of receipt of the application and relevant fee.
Once the petition is approved, then comes the interview step at the local US consulate. Most consolidates will schedule an interview relatively quickly, but this step could take several weeks. The actual interview will take place on one day and generally only takes a short amount of time.
In all, the visa process should take less than 4-5 months. But, it can be shorted to as little as 15 days (if premium processing is selected and the consulate does not require a personal interview beforehand.)
O1 Renewal Processing Time
The O1 visa is granted for an initial period of up to 3 years, depending on what is contained the itinerary included in the visa application. The visa can be extended past the initial 3 year period in 1 year increments.
The process for extending the O1 visa is as follows:
There cannot be any violations of the terms of the original visa grant (such as being convicted of a crime).
The individual’s passport must remain valid throughout the entire period of the individual’s stay in the United States.
The employer must provide a statement explaining of justifying the need for the extension. Generally, it must provide the nature of the work being done, the progress toward completion, and how the foreign individual’s presence is needed for completion of the work.
The employer must complete a new I-129 petition for the visa extension. You must also include your I-94 demonstrating that your required departure date on the original visa has not lapsed.
There is no pre-defined limit on the number of times that the visa can be extended. If the work being undertaken by the visa holder can substantiate the request for extension, the individual could stay in the United States indefinitely.
The processing of the new I-129 will take about 6 months and can be expedited in the same method as the original petition.
Processing Time for the O1 Visa to EB1 Green Card
As previously explained, the O1 visa is a dual intent visa. The foreign individual, once approved, may begin to work on securing permanent residency status (securing a green card) through a separate visa program. The most common greed card program is the EB1 program.
The EB1 program is a green card program for individuals who have show exceptional achievement or ability in predefined fields. The fields of ability and achievement include: researchers or professors, and executives and managers of multi-national companies. These are two areas that are covered under the O1 visa. Notably, the EB1 does not include many high-achieving individuals that are outside of these categories.
The substantiation and documentation requirements for securing a green card through the EB1 program are extremely similar to the requirements for processing the O1 visa.
The primary difference between applying for the O1 and the EB1 is the role of the employer. The O1 visa requires an employer to file the petition. Under the EB1, the foreign individual can file the petition or “self-petition”. There is no need to have an employer or employment offer as part of the application process.
The similarity between the EB1 and the O1 makes the processing time for the EB1 short in comparison to most immigrant visas. The EB1, as a green card visa, will have a longer processing time than the visa application.
The process for petitioning for the EB1 starts by the foreign individual or the employer/agent of the individual filing for I-140 with the USCIS. The date of filing is the “priority date” assigned to the petition. The priority date is relevant because that marks the time when the applicant can move on to the next step of the process. If the visa program is highly-petitioned and the visa program met a pre-defined cap, the priority date would become more relevant. Currently, the EB1 priority date is always current. This means that the individual can move on to the next step of securing the EB1 (adjusting your status to EB1 immigrant) as soon as the I-140 petition is approved. Most immigrant visas require several months to several years of waiting before the applicants priority date becomes current.
The processing time for the EB1 application will generally take 6-8 months, depending on the workload and staffing of the regional processing office charged with reviewing it. Like the O1, the applicant can pay for premium processing for a fee of $1,225. This will cut the processing time down to 15 days.
Once approved, the next step is to have your status adjusted to that of lawful permanent resident. You must submit form I-485 to the USCIS. Processing of the form I-485 generally takes about 6 months. There is no option for electing premium processing of this application.
The entire EB1 process should take between 6 months and 14 months.
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 legal professionals at LawTrades are experts in all matters of immigration law. They can provide you the guidance and services you need to successfully navigate this area of law.