U.S. Immigration Explained Blog

O VISA:

ATHLETES, ENTERTAINERS, ARTISTS, EDUCATORS, SCIENTISTS AND BUSINESS PEOPLE

The O visa is only for non-U.S. citizens who possess extraordinary ability in the arts, education, sciences, athletics, or business illustrated by sustained national or international acclaim. This category allows those who have extraordinary ability in one of these areas to avoid the caps and time restrictions placed on other visas available such as the H, L, or J. In addition, the O visa does not have the wage or degree requirements that other visas have. There are three different O visas available for non-citizens. The O-1 visa is for persons possessing extraordinary ability in the arts, education, sciences, athletics, or business. The O-2 visa is for people who are accompanying or assisting an O-1 artist or athlete to assist the O-1 visa holder with a particular event or events. The O-3 visa is for the spouse or minor children accompanying the O-1 or O-2.

O-1

Visa Non-citizens seeking an O-1 visa must possess extraordinary ability in the arts, education, sciences, athletics, or business illustrated by sustained national or international acclaim. In addition, the non-citizens must come to the United States for the purpose of continuing to work in their area, but they do not have to be performing services which require someone with the non-citizens extraordinary ability. O-1 visa petitioners may have the intent to remain temporarily and the intent to stay permanently in the United States at the same time, since there is not a requirement to maintain a foreign residence.

Extraordinary ability or achievement must be proven by the petitioner for the O-1 visa. Business persons, scientists, educators, and athletes are required to prove a greater level of extraordinary ability or achievement than artists and entertainers. For business persons, scientists, educators, and athletes their extraordinary ability or achievement must be demonstrated through sustained national or international acclaim. However, artists and entertainers in the television or movie industry must show only a record of extraordinary achievement. All O-1 petitioners, though, must show that their achievements are recognized in their “field through extensive documentation.” INA §101(a)(15)(O)(i) Be very careful in defining or stating the field of endeavor, because if it is defined too broadly or too narrowly the application may be denied.

Petitioners in the fields of science, education, business, or athletics must prove that he or she possesses “a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor.” 8 CFR §214.2(o)(3)(ii) The petitioner may demonstrate this by presenting evidence that he or she won a “major, internationally recognized award, such as the Nobel Prize” or provide documentation of at least three of the following:

Receipt of nationally or internationally recognized prizes or awards;
Membership in associations that require outstanding achievement in the field;
Published materials in professional or major trade publications about the non-citizen;
Judged or participated on a panel judging the work of others in the same field of expertise;
Original scientific, business, or scholarly work of major significance in the field;
Authorship of scholarly work in professional publications;
Employment in a critical or essential role for an organization with a distinguished reputation; and/or
Has previously commanded or will command a high salary compared to others.
If one of the above categories does not readily apply to the applicant, he or she may be able to present “comparable evidence” to demonstrate his or her level of expertise. 8 CFR §214.2()(3)(iii)(C) Recently, however, the courts appear to be allowing comparable evidence only when the above list does not apply to the particular field the applicant is in.

Artists and entertainers who are not in television or movies must show distinction in the arts, meaning the applicant must show that he or she is prominent within the field of arts demonstrated by being nominated or by receiving a important national or international prize or award such as an Emmy or a Grammy or if the applicant has not received or been nominated for an award he or she must provide evidence of at least three of the following:

Played the lead role in a play or production that has a distinguished reputation;
Received reviews from critics that are published in major newspapers or trade journals;
Played the lead role for an organization or establishments having a distinguished reputation;
Has a record of major commercial or critically acclaimed success;
Received significant recognition from critics, government agencies, organizations, or other experts in the field; and/or Has previously commanded or will command a high salary as compared to others in the same field.

If one of the above categories does not readily apply to the applicant, he or she may be able to present comparable evidence to demonstrate his or her level of expertise. Television or movie stars must demonstrate a the same distinction as required above for those not within the film or television industry; however, the provision regarding television or movie stars does not expressly allow the use of comparable evidence. This is not to say that it may never be used, but that the law does not expressly state that it may be used.

O-2 Visa: Essential Personnel

Anyone seeking to obtain an O-2 visa must send their petition in with the person who is applying for the O-1 visa, since the O-2 is someone who is performing services for the O-1 while he or she is in the United States. An applicant applying for an O-2 must demonstrate that he or she:

Is entering only to assist the O-1 in his or her performance and not for any other reason or purpose;
Will be an essential part of the O-1’s actual performance; Has crucial skills and experience with the O-1 applicant so that no the work cannot be performed by a U.S. worker; and Maintains a residence abroad that he or she does not intend to abandon.

Time Limits for O-1 and O-2 Visas

The Immigration and Naturalization Act does not place any type of time limit on the O visa, except that it is valid for the period of the event which the applicant said he or she needed to enter into the country for. However, the USCIS has stated that the time limit is no more than three (3) years with extensions available for one year at a time. Note, that if the O-1 visa holder changes employers and remains in the same field, he or she may be granted a new O-1 visa with a three (3) year time period because having a new employer is considered a new event. In addition, O visa holders may be allowed into the country ten (10) days prior and remain ten (10) days after their visa validity period, but the visa holder may not work during this time.

O-3 Visa: Spouses and Children

This visa is specifically for the spouse and/or children of an O visa holder coming to the United States for the purpose of joining the O visa holder.