What is the O-1 Extraordinary Ability Visa?
The O-1 visa is a nonimmigrant temporary work visa which allows US employers to hire foreign workers who possess extraordinary ability. This classification is for people who are at the top of their fields of endeavor in the sciences, the arts, education, business, or athletics as well as motion pictures and television.
In order words, if you have an O-1 visa, you have done very well in your field and have been recognized for those achievements. The evidence will vary according to the field of endeavor and standard of proof.
What is Considered Extraordinary Ability?
The definition of extraordinary ability is a level of expertise reserved for someone at the top of their field of endeavor. Our firm has successfully petitioned for O-1 visas for chefs, athletes, actors, artists, business individuals and individuals in many other fields.
Types of O-1 Visas
The O-1 visa has 2 subcategories. The O-1A visa is for individuals with extraordinary ability in the sciences, education, business or athletics, whereas the O-1B visa is available to individuals with extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry and have been recognized nationally or internationally for those achievements. The O-1B visa for the arts requires distinction.
The O-1 visa is a Non-immigrant visa which can be given only on the basis of individual qualifications. Membership in a group or team is not by itself enough sufficient for the visa to be granted. In addition, an individual must be going to work or perform at an event or a series of events in the specific area of their extraordinary ability. The term "event" is interpreted liberally outside the fields of athletics and arts, which can include, for example, an ongoing research project for a private company.
The O-1 visa can be granted initially for a period of up to 3 years and can thereafter be extended in one-year increments indefinitely. The spouse and children of the O-1 visa holder will receive O-3 visas which allow them to live and study in the United States. However, they cannot accept employment.
The O-1 visa is an employment related status and you cannot apply for it directly. You must first have an offer of employment associated with your field of extraordinary ability. Your employer would then petition on your behalf, which can be done up to six months before the intended starting date. However, as long as there is an employer-employee relationship the O1 beneficiary can have ownership in the petitioning entity.
O1 Visa Requirements - Determining “Extraordinary Ability”
An individual must meet 3 of the 8 criteria for the O-1A visa, or 3 of the 6 criteria for the O-1B visa to qualify as an individual of “extraordinary ability,” or alternatively have won a major internationally recognized award (for O-1A) or have received or been nominated for a significant national or international award in the particular field (for O-1B). Extraordinary ability in the arts or in motion picture or television industry (O-1B visas) means a high level of achievement. In the fields of science, education, business or athletics (O-1A visas) extraordinary ability means that, because of your level of expertise, you are considered to be at the very top of the field of endeavor.
The attendants (or support personnel) can be admitted under O-2 visas upon demonstrating that the O-1 visa holder needs them to accomplish his or her mission.
Along with the application package, the U.S. petitioner will have to submit a written consultation from a labor organization specialized in the considered field, evidencing that the individual is a recognized expert in this field.
For more detailed information about the O1 Visa requirements, please check out how the USCIS summarizes the criteria for determining “Extraordinary Ability" to qualify for the O1 Visa, and our comments.
The Need for a Sponsor
O-1 is an employment related status and cannot be applied for directly. An individual must first have an offer of employment from a United States sponsor associated with their field of extraordinary ability. Ownership interest in the petitioning employer may not preclude the filing of the O-1 petition as long as there is a bona fide employer-employee relationship.
The definition of “sponsor” is flexible. A sponsor may be the individual’s direct employer, a US agent, an individual authorized by a foreign employer to act as their agent or an agent for multiple employers. The sponsor files the petition on the employee’s behalf, which can be done up to six months before the intended starting date. The O-1 extraordinary ability visa is an excellent way for a United States employer to bring high quality foreign personnel to work in their businesses. Any United States employer may hire a foreign O-1 employee, even a one-person business. There are no requirements regarding the size or income of the United States employer-sponsor.
Types of Sponsors for O1 Visas
The different types of sponsors are elaborated below:
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Employer
A sponsor may have a traditional employer-employee relationship with the O-1 visa holder, employing them full time and paying them hourly or a salary and treating them largely as they would most other employees.
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Agent as Employer
An agent may be the employer of traditionally self-employed individuals and may arrange multiple short-term assignments that the individual may perform for multiple clients.
For example, an agent-sponsor for a performer may regularly arrange performances and appearances for the O-1 visa holder.
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Agent as a Representative of a Foreign Employer
In this case, a foreign employer would hire a US agent to sponsor one of their employees for an O-1 visa. The foreign employer would generally have a contract with the US agent-sponsor wherein the agent-sponsor would be remunerated for their services as an agent from the earnings of the O-1 individual’s contracts with US clients.
Returning to our example of the O-1 performer: A foreign company who regularly employs performers may contract a US agent to sponsor one of their extraordinary performers for an O-1 visa and thereafter to act as the O-1 performer’s agent. The agent-sponsor would then regularly seek out performances and engagements for the O-1 performer and be remunerated per their contract with the foreign employer.
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Agent as a representative of the O-1 Individual and multiple employers
In this case, an agent-sponsor is contracted by multiple different employers to sponsor a foreign individual for an O-1 visa, and the O-1 visa holder may perform services for any of the US employers included in the petition.
The advantage to this is that it is one of the very few circumstances where an individual on a work visa may work for multiple employers at once.
For more detailed information about this subject, please read our article "O-1 Visa Agent: the basics".
Advantages and Disadvantages of the O-1 Visa Compared to Other Visas:
The O-1 visa has a number of advantages compared to other visas and processes for bringing foreign employees to the United States.
Several advantages are:
- There is no limitation on how many visas can be issued in the O-1 category, unlike the H-1B
- There is no wait to file for an O-1 petition.
- No minimum salary must be paid to the foreign employee, i.e. prevailing wage, unlike the H-1B
- The costs of preparing the application may be borne by either the employer or the foreign employee, or they may jointly split the cost.
- The O-1 may be renewed indefinitely
- O-1 visas are eligible for Premium Processing, which can guarantee a decision on the application in only 15 calendar days for an additional fee.
A disadvantage of the O-1 visa is that the employer is liable for the O-1 visa holder’s return flight to their country of last habitual residence if the employment if terminated for any reason other than the individual’s voluntary resignations (sickness, disability, firing, sponsor goes bankrupt, Act of God, etc.) Vazquez & Poudat in Orlando has an experienced team in place to assist both employee and employer with assembling all the necessary elements for the O-1 visa petition and application.
We frequently receive questions about the O-1 visa and its requirements. In an effort to help you obtain as much information needed as possible, our O1 Visa Lawyers have compiled the questions most commonly asked by our clients. So please feel free to read our O-1 Visa Frequently Asked Questions to find more information on this subject or contact us directly.
Why do I need to hire Vazquez & Poudat to help me with my case?
The help of a tried and true good immigration lawyer is going to give you the advantage of their experience in this area of law over time. A good immigration lawyer experienced in this area will know where and how to be creative to give you an advantage or to make up for a deficiency in another aspect of your case. While the law says you must meet a certain number of criteria, you need more than that. Immigration law is not a “plain language” law. There are layers of regulations and policies that are used to implement the law. Some are allowed, but other times the USCIS immigration agency gets it wrong or just invents a standard that is not permissible. You would probably not know that and/or how to deal with it. In addition, we help you develop your evidence to include determining what to use and what not to use. Some evidence you think is helpful may not be helpful at all and could even be used against you to undermine your eligibility. At Vazquez & Poudat, we are used to these challenges and are best equipped to handle them.
Contact Immigration Law Firm for your O Visa Application
If you think you may qualify for an O1 visa contact us today. Our professional team is dedicated to helping individuals with all of their migration needs, including O visa applications. Orlando Immigration Attorneys Suzanne Vazquez and Maud Poudat, are Board certified as experts in Immigration and Nationality Law by the Florida Bar. They are very experienced and have helped many clients in the past. Our legal team also includes a Hispanic immigration attorney, Daniela Alvarado, who can help you in your own language. Call our Immigration Law Firm today during office hours at (407) 674-6968 and we will be glad to help you. You may also fill in the online form provided in this page and one of our O1 Visa Attorneys in Orlando will get back to you as soon as possible.
