The O-1 visa category may be considered as an alternative to the H-1B temporary workers’ visa.
The O-1 can be availed of by foreign nationals with proven extraordinary ability in the sciences, arts, education, business or athletics.
This category is especially applicable to foreign artists, scientists, athletes, entertainers, high-end chefs, educators and even business people lacking professional degrees but who have exhibited extraordinary abilities, achievements or recognition in their respective fields, nationally or internationally.
“Extraordinary” ability or achievement is a high standard required to qualify for the O-1 visa. This can be satisfied by presenting proof of being a recipient of a major, internationally recognized award.
Any three of the following may also be submitted in support of the O-1 petition: (a) national or international prizes or awards; (b) membership in recognized organizations requiring outstanding achievement as judged by experts; (c) published material about the foreign national in professional or major trade publications or major media; (d) experience judging the work/performance of others in the field; (e) original scientific, scholarly or business related contributions of major significance; (f) authorship of scholarly articles in professional journals or other major media; (g) employment in a distinguished organizations and establishments in a critical or essential capacity; or (h) high salary or remuneration as evidenced by contracts or other reliable evidence.
The above list is not exclusive. The United States Citizenship and Immigration Services (USCIS) may consider other comparable evidence.
The foreign national beneficiary cannot self-sponsor. A U.S. employer or agent must file the O-1 petition on behalf of the foreign national.
Additionally, a peer/ labor union/ management group consultation regarding the nature of the proposed work and the foreign national’s qualifications is required before an O petition can be approved.
O-1 extraordinary aliens may be allowed to be accompanied by assistants or workers sponsored under the O-2 category. However, only those in the arts, motion picture, television productions and athletics are allowed to be accompanied by O-2 workers. The O-2 visa is not applicable to accompany scientists, educators or business people.
While in O-2 status, the O-2 workers cannot work separate and apart from the principal O-1 alien, otherwise they will violate their status.
Dependents such as the spouse and minor children of the O-1 and O-2 workers can be petitioned under the O-3 category.
An O visa may be extended in one-year increments for an indefinite period of time. There is no cap for the O visas unlike the H-1 visas.
Finally, O-1 visas are what are known as “dual intent visas”, meaning that the O-1 alien-beneficiaries are not required to show a foreign residence they intend to return to.
This also means that the granting or the extension of the O-1 visa or status cannot be denied even though a labor certification or a petition leading to permanent residence in the U.S. is filed on behalf of the O-1 alien. The O-2 accompanying aliens, on the other hand, must be coming to the U.S. only temporarily and must show that they have a residence abroad that they do not intend to abandon.
Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at 212 695 5281 or log on to his website at www.seguritan.com