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An Overview of O-1 Nonimmigrant Status

May 17, 2022
Courtney Wachal

If you were not selected in the H-1B lottery, you feel you may have exhausted all other visa options and you consider yourself to be at the top of your field, then an O-1 visa may be the right option for you.

The O-1 is a nonimmigrant (temporary) work-authorized status available to foreign nationals who possess extraordinary ability in the sciences, arts, education, business or athletics and are coming to the U.S. to work within the field of their extraordinary ability. The O-1 extends to the following subcategories:

  1. O-1A status for individuals with extraordinary ability in the sciences, education, business or athletics.
  2. O-1B status is for individuals with extraordinary ability in the arts, or in the motion picture or television industry.
  3. O-2 status is for individuals who will accompany an O-1 artist or athlete to assist in a specific event or performance.
  4. O-3 status is for the spouse or child(ren) (under 21) of individuals granted O-1 or O-2 status. Please note that this status is not work authorized.

How Long Can I Stay in the U.S. on an O-1?

Ordinarily, O-1 status is initially granted for a period of 3 years. However, depending on the scope of the work, the period of stay may be granted for less time. Once the initial 3-year period is up, you can continue to extend the O-1 indefinitely in increments of 1 or 3 years. Please note that there is no max out date.

If you plan to continue working for the same employer and in the same position, USCIS will typically grant only a one-year extension, unless you chose to consular process, in which case you can extend for another three years.

If you no longer wish to remain at your current employer or in your current position, you can apply for a new O-1 either:

  • With a new employer
  • For a new position with the same employer
  • For a different project or event with the same employer

If you apply for a new O-1 status based on the three criteria above, you can extend for an additional 3-year period.

Does an O-1 Require Employer Sponsorship?

An O-1 does not allow an individual to self-petition nor does it permit self-employment. However, one of the benefits of the O-1 is that it permits a variety of different working arrangements in the U.S. The O-1 petition must be filed by one the following:

  • U.S. employer
  • U.S. agent acting on behalf of a foreign employer or on behalf of multiple U.S. entities
  • Separate legal entity owned by the O-1 beneficiary if there is a bona fide employer-employee relationship
    • The company owned by the O-1 beneficiary must have sufficient control over the terms of their employment
    • The company (through a board of directors, majority shareholders) must have the authority to terminate their employment
    • USCIS can also use their discretion to determine whether to grant an O-1 based on this type of work arrangement

For any of the employer arrangements listed above, USCIS does require that the petitioning employer/agent submit a copy of the contract or summary of the agreement between the parties.

Financial Obligations of my Employer

Your employer must serve as your petitioner for an O-1 petition. However, either you or your employer can pay the fees associated with filing an O-1 petition. For example, you can pay the legal fees and your employer could pay the filing fees or vice versa.

Additionally, there is not a required salary minimum that your employer is obligated to pay you. Although, in the event your employer terminates your employment for any reason other than your voluntary resignation, the employer is required to pay a reasonable cost of return transportation to your last place of residence outside of the U.S.

What Evidence Can be Provided for an O-1A?

O-1A status requires that the individual have extraordinary ability in the field of science, education, business, or athletics. Extraordinary ability means that the individual has reached a level of expertise demonstrating that they are one of a very small percentage of people who have risen to the very top of their field.

To qualify, one must have received a major, internationally recognized award (e.g., Nobel Prize, Pulitzer Prize), or must have at least 3 of the following criteria:

  1. Receipt of nationally or internationally recognized prizes or awards for excellence in the field;
  2. 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;
  3. Published material in professional or major trade publications or major media about the applicant or their work;
  4. Participation on a panel, or individually, as a judge of the work of others in the field;
  5. Original scientific, scholarly, or business-related contributions of major significance in the field;
  6. Authorship of scholarly articles in the field, in professional journals, or other major media;
  7. Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation;
  8. Commanding a high salary or other remuneration for services; or
  9. Other comparable evidence if the criteria above do not apply or exist in their field.

What Evidence Can be Provided for an O-1B?

O-1B status applies to those have extraordinary achievement with respect to motion picture and television productions, as commonly defined in the industry. In order to demonstrate extraordinary achievement for an O-1B, an individual must have achieved a very high level of accomplishment in the motion picture or television industry. Ordinarily, this is evidenced by a degree of skill and recognition that is significantly above what is ordinarily encountered to the extent that the person is recognized as outstanding, notable or leading in the motion picture or television field.

To qualify, one must have received a significant national or international award or prize in the particular field (e.g., Academy Award, Emmy, Grammy, Director’s Guild Award), or must have at least 3 of the following criteria:

  1. Performing services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications contracts, or endorsements;
  2. Achieving national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications;
  3. Performing in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials;
  4. A record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications;
  5. Receiving significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged;
  6. Commanding a high salary or other remuneration for services; or
  7. Other comparable evidence if the criteria above do not apply or exist in their field.

Conclusion

If you feel you have risen to the top of your field or if you feel that you can provide evidence of the at least 3 of the above discussed criteria, then you may meet the requirements to obtain O-1 nonimmigrant status. Our experienced employment-based attorneys can answer any questions you have and provide advice whether the O-1 is the best visa option for you.

Please contact our attorneys to schedule a consultation.

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