O-1 Visas: Extraordinary Ability or Achievement

In the meritocracy of the visa program’s categorization of achievement, O-1 visas are the pinnacle. They are reserved for the best of the best who are in turn rewarded with a visa allowing them to stay and work in the United States for at least three years with the possibility of unlimited one-year extensions.

Just how extraordinary does an individual need to be to warrant this visa? The good news is that there are specific metrics that are used to gauge the extraordinary nature of the petitioner. The bad news is that the metrics are extremely high. Depending upon the field of the individual, they must either show that they have extraordinary ability or extraordinary achievement. Individuals in the sciences, arts, business, athletics, or education must be able to prove they have extraordinary ability. Individuals in motion pictures or television must be able to prove extraordinary achievement. And, of course, the individual must be coming to the U.S. to work in their area of extraordinary ability or achievement.

Extraordinary ability: Individuals in the fields of education, science, athletics, or business will be deemed to have extraordinary ability in their field if they have achieved a level of expertise such that they have risen to the very top of their field. For individuals in the arts, ability is measured by distinction, specifically demonstrated by skill and recognition far above that which is usually seen. The foreign artist must prove that they are renowned, well-known, or leading in their particular field of the arts.

Extraordinary achievement: For individuals in the fields of television or motion pictures, extraordinary achievement is defined as accomplishment at the very highest level as shown by skill and recognition that is much higher than what is usually seen. The individual must be known to be outstanding, leading, or notable.

The Petition Process

The individual seeking the visa is not the person who actually files the petition with the U.S. Citizenship and Immigration Services (USCIS). The individual must have a U.S. sponsor file the petition request on their behalf. Typically, a U.S. sponsor will be the U.S. employer of the individual or their agent, or a foreign employer through a U.S. agent. In addition to the basic petition, the filer must also include documentation of the extraordinary ability or achievement of the individual for whom the visa is being sought.

Supporting Documentation of Extraordinary Ability in the Sciences, Business, Education, or Athletics: The documentation must be able to support the allegation that the individual has obtained national or international renown and acclaim for their accomplishments in their field. There are eight types of documents that can be used to support this allegation, of which the petition must include at least three (3):

• Scholarly articles by the individual in their field published in professional journals or major media outlets
• Proof of membership of the individual in associations in their field which can only be joined upon outstanding or exemplary achievements
• Articles or items published in major publications or professional journals about the individual and their work
• Evidence of major and original contributions by the individual that are scientific, scholarly, or related to business in their field
• Proof that the individual participated in judging the work of others in their field
• Evidence that the individual has received or been honored with nationally or internationally recognized prizes or awards due to their accomplishments in their field.
• The individual is an employee of a distinguished organization and they are critical and essential to the operation of the organization
• Contracts showing that the individual commands a high salary, or will do so.

Supporting Documentation of Extraordinary Ability in the Arts: The documentation must be able to support the allegation that the individual has been recognized as being prominent in their particular field of the arts. If the individual has received a nomination for or actually won a significant national or international award such as a Grammy, a Tony, an Academy Award, or an Emmy.

Even if the individual has not garnered one of these, the individual may still meet the requirements by submitting evidence of at least three (3) accomplishments of six (6) listed:

• The individual has received national or international acclaim for their achievements
• The individual has or will be performing as a lead, star, or taking on a critical role for a distinguished organization
• The individual has or will be performing as a lead or star in a distinguished production or event
• The individual has a record of commercial or critical success
• Other organizations, including governments, have substantially recognized the achievements of the individual
• Contracts showing that the individual commands a high salary, or will do so.

Supporting Documentation of Extraordinary Achievement in Motion Pictures of

Television: The documentation must be able to support the allegation that the individual has been recognized as demonstrating a record of extraordinary achievement. If the individual has received a nomination for or actually won a significant national or international award such as a Grammy, an Academy Award, Directors Guild Award, or an Emmy.

Even if the individual has not garnered one of these, the individual may still meet the requirements by submitting evidence of at least three (3) accomplishments of six (6) listed:

• The individual has received national or international acclaim for their achievements
• The individual has or will be performing as a lead, star, or taking on a critical role for a distinguished organization
• The individual has or will be performing as a lead or star in a distinguished production or event
• The individual has a record of commercial or critical success
• Other organizations, including governments, have substantially recognized the achievements of the individual
• Contracts showing that the individual commands a high salary, or will do so.

Along with this documentation, the petition must also provide a copy of the contract between artist or entertainer and the employer or agent, if it is in writing. If it was an oral contract, then a written summary of the terms between the parties must be submitted. Where necessary, third party contracts may also need to be submitted. In some cases, the agent must also submit an itinerary with a discussion of the proposed activities of the artist or entertainer including beginning and end dates of the activities.

Finally, a written opinion or consultation written by an appropriate consulting entity or individual must be included. The consultation must be completed by a labor, management, or peer group or organization in the U.S. and must discuss the nature of the individual’s work and qualifications. The consulting organization can also submit a letter of no objection in the alternative. Where there is no group of peers or consulting organization, the petitioner can seek to have the application judged only on the evidence of record.

Obtaining the Visa: If a petition is granted and the individual is not in the United States already on a different visa, the individual must go to the nearest U.S. embassy to apply for the visa. If the individual is already in the U.S on a different visa, there is no need for the individual to leave the country and return. The individual can remain in the country and begin the work that was the subject of the petition.

Dependents: The spouse and unmarried children under the age of 21 of the O-1 visa holder may seek O-3 visas to accompany the O-1 visa holder to the U.S. Neither the spouse nor the children can take on employment while they are in the U.S. The dependents may attend college.

Post-Admission: To remain in the U.S., the visa holder’s qualifications must be maintained. When there is a change in those qualifications, the visa holder must notify USCIS immediately of the changes and the employer should file an amended visa petition. Athletes who are traded from one sports team to another will have 30 days authorization with the new team, but during that 30 days will need to file a new Form I-129 to amend the petition and get employment authorization for the new team.

Changing Jobs: Since the petition to allow the O-1 holder to have a visa in the first place must have been filed by the employer sponsoring their visit, if the visa holder wants to change employers, this will require an amendment of the petition. In this case, the new prospective employer must file a Form I-129 seeking approval of them as the new employer. The visa holder cannot begin to work for the new employer until the petition is granted.

Extensions of Visit: The O-1 visa is authorized for a period of up to three years. However, if the visa holder requires additional time to complete their work for the employer for which they were approved in the first place, the employer must file a request to extend the visa period for the individual. This can only be done if the individual is still physically present in the U.S. and the initial term has not expired. Extensions may be granted for a period of up to one year but there is no limit on the number of extensions that can be requested.

Dual Intent: While O-1 visas are considered “nonimmigrant” meaning they do not on their face allow the individual to seek permanent residence in the U.S., the doctrine of “dual intent” does appear to be applicable to these visa holders. This means that while the visa holder is authorized to come to the U.S. for a limited time to perform their work, they also can petition to become a permanent resident.

End of Employment: If the employment contract of the visa holder ends for a reason other than completion of the contract, the employer and/or the U.S. petitioner must pay the visa holder the reasonable expense of transportation back to the visa holder’s country.