O Visas

Introduction to O Visas

O visaO-1 (O1) Visas are for aliens who have extraordinary ability in certain specified fields (O1A) or a record of extraordinary achievement in movie or TV production (O1B). O2 visas are available for certain persons who are accompanying and assisting an O1 artist or athlete for a specific event or events. O3 visas are available for derivative spouses and children of O1 and O2 beneficiaries. This article will explain the requirements for qualifying for O visas, the application process, being on O status, and general advice pertaining to O visas.

Statutory Rules for O Visa Classification

Rules for O1A and O1B Classification

Pursuant to section 101(a)(15)(O)(i) of the Immigration and Nationality Act (INA), an alien must satisfy the following in order to be eligible for an O1A visa:

  • Possess “extraordinary ability” in the sciences, arts, education, business, or athletics;
  • The “extraordinary ability” has been demonstrated by sustained national or international acclaim;

In order to be eligible for an O1B visa, the alien must:

  • Have a record of “extraordinary achievement” with regard to motion picture or television productions;
  • The “extraordinary achievement: have been recognized in the field through extensive documentation;

For both O1A and O1B visas, the alien must be seeking to enter to work in his or her area of expertise.

Regulations found in 8 C.F.R. 214.2(o) flesh out the categories listed in the O1 visa statute.

Section 214.2(o)(ii) of the regulations explains that “arts” includes any field of creative activity or endeavor such as, but not limited to:

  • fine arts,
  • visual arts,
  • culinary arts, and
  • performing arts.

The regulation continues to note that “arts” is not limited to principal creators and performers, but may also include other essential persons. The regulation provides a non-exhaustive list:

  • directors,
  • set designers,
  • lighting designers,
  • sound designers,
  • choreographers,
  • choreologists,
  • conductors,
  • orchestrators,
  • coaches,
  • arrangers,
  • musical supervisors,
  • costume designers,
  • makeup artists,
  • flight masters,
  • stage technicians,
  • animal trainers.

The regulations define “extraordinary ability” in the arts as having distinction, or a high level of achievement that is evidence by a degree of skill and recognition that is substantially greater than what would normally be encountered in the field. “Extraordinary ability” in science, education, business, or athletics is defined as a level of expertise that indicates that the person is one of the very few to rise to the top of the field. The Administrative Appeals Office (AAO) has held that the standard for “extraordinary ability” is less in the arts than in science, business, or athletics.1

The regulation defines “extraordinary achievement” in motion picture and television productions as a very high level of accomplishment in the industry evidence by skill and recognition significantly above that ordinarily encountered.

Rules for O2 Classification

Pursuant to section 101(a)(15)(O)(ii), there are two ways in which an alien is eligible for an O2 visa to accompany and assist an O1 beneficiary.

In order for an O2 beneficiary to accompany and assist an O1 beneficiary, he or she must:

  • Be seeking to enter the United States temporarily and solely in order to accompany and assist an O1A beneficiary in artistic or athletic performances for a specific event or events;2
  • Be an integral part of the performance that he or she seeks to assist the O1A in;3
  • Possess critical skills and experience with the O1A beneficiary which are not of a general nature and cannot be performed by other individuals.4

The first requirement is also applicable to O2s seeking to accompany and assist O1B beneficiaries. However, section 101(a)(15)(O)(ii)(III)(b) provides specific requirements for such O2 applicants:

  • Must possess skills and experience with the O1B beneficiary that are not of a general nature; and
  • are critical either based upon a pre-existing long-standing working relationship; or
  • with respect to the specific production, because significant production work (including pre- and post-production) will take place both inside and outside the United States; and the continuing participation of the O2 is essential to the successful completion of the production.

Pursuant to section 101(a)(15)(O)(ii)(IV), an O2 applicant must demonstrate that he or she has a foreign residence which he or she has no intention of abandoning.

Rules for O3 Classification

Pursuant to section 101(a)(15)(O)(iii), a derivative spouse or child of an O1 or O2 beneficiary is eligible for an O3 visa to accompany or follow to join the principal.

An O3 beneficiary may be admitted for the same period as the principal. O3 status does not authorize employment. However, an O3 beneficiary may seek employment authorization while on O3 status.5

O Visa Petitioners

O1 and O2 visa petitions are filed on the Form I-129, Petition for a Nonimmigrant Worker. The O visa category does not allow for self-petitioning. Pursuant to regulations in 8 C.F.R. 214.2(o)(2)(i), the following may act as an O1/O2 petitioner:

  • U.S. employer;
  • Foreign employer through a U.S. agent;
  • U.S. agent acting as employer (generally for traditionally self-employed situations).

The petitioner will always be required to submit either copies of written contracts between it and the beneficiary, or if there is no written contract, the terms of the oral agreement under which the beneficiary will be employed.6

Foreign employers are not permitted to act as a petitioner directly, but may file through a U.S. agent. The foreign employer is responsible for complying with section 274A of the INA concerning unauthorized employment.

Pursuant to 8 C.F.R. 214.2(o)(2)(iv)(E), agents may also file a Form I-129 for O1 or O2 classification in cases involving beneficiaries who are traditionally self-employed or cases where the beneficiary will use an agent to arrange short-term employment with multiple employers. The agent may be the actual employer in certain scenarios. An agent acting as an employer must submit the contractual agreement between the agent and beneficiary and include the wage that is being offered. An agent-petitioner will be required to demonstrate that he or she may and will exercise a degree of control over the beneficiary's work in order to establish the requisite employer-employee relationship.

Where an agent is the petitioner and intends to set up short term employment for the beneficiary with multiple employers, he or she, as representative of both the employers and the beneficiary, must provide an itinerary of event(s) that specifies the date of each service or engagement, the names and addresses of the actual employers, the names and addresses of the establishments, and the venues, or locations where the services will be performed.7

Proving Qualifications for O1 Visa

O1A Visa

Pursuant to 8 C.F.R. 214.2(o)(3)(iii), in order to demonstrate extraordinary ability in the fields of science, education, business, or athletics, a petitioner must submit:

  • (A) Receipt of a major, internationally recognized award in the field (e.g. a Nobel Prize); or
  • (B) At least three of the following:
    • (1) Documentation of the alien's receipt of nationally or internationally recognized prizes or awards for excellence in the alien's field of endeavor;
    • (2) Documentation of the alien's membership in associations in the alien's field which require outstanding achievements of their members;
    • (3) Published material about the alien's work in the field in professional or major trade publications;
    • (4) Evidence that the alien participated on a panel or individually as a judge of the work of others in the same field or in an allied field of specialization to the alien's field;
    • (5) Evidence of the alien's original scientific, scholarly, or business-related contributions of major significance in the field;
    • (6) Evidence of the alien's authorship of scholarly articles in the field, in professional journals, or in other media;
    • (7) Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation;
    • (8) Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services.
  • (C) If the list of criteria is not readily applicable to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility.

Pursuant to 8 C.F.R. 214.2(o)(3)(iv), in order to demonstrate extraordinary ability in the arts, a petitioner must submit:

  • (A) Evidence that the alien has been nominated for, or has been the recipient of, significant national or international awards or prizes in the particular field (e.g. Academy Award, an Emmy, a Grammy, or a Director's Guild Award); or
  • (B) At least three of the following forms of documentation:
    • (1) Evidence that the alien has performed, and will perform, services as a lead or starring participant in events which have a distinguished reputation;
    • (2) Evidence that the alien has achieved national or international recognition for achievements in the field;
    • (3) Evidence that the alien has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation;
    • (4) Evidence that the alien has a record of major or critically acclaimed success;
    • (5) Evidence that the alien has received significant recognition for achievements from organizations, government agencies, or recognized experts within the field;
    • (6) Evidence that the alien has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field.
  • (C) If the list of criteria is not readily applicable to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility.

Furthermore, an O1A petition must include a consultation with a U.S. peer group in the alien's area of expertise (may include a person or persons with expertise in the field) that will take the form of an advisory opinion.8 The advisory opinion, and its contents are not binding. The advisory opinion should describe the alien's ability and achievements, the nature of the work the alien would do, and whether the work requires “extraordinary ability.”9 The consulting organization may also issue a letter of no objection to the approval of the petition. Where a case in the arts, entertainment, or athletics merits expeditious handling, USCIS may contact the appropriate labor or management organization in order to request an advisory opinion if one has not been provided by the petitioner.10 The consultation requirement may be waived at the discretion of USCIS for a person of extraordinary ability in the arts where the beneficiary is seeking to be readmitted to the United States to perform similar services within 2 years of a previous consultation. If the alien establishes that no trade organization for his or her field of endeavor exists, USCIS will adjudicate the petition on its merits without an advisory opinion.11

O1B Visa

Pursuant to 8 C.F.R. 214.2(o)(3)(iv), in order to demonstrate extraordinary achievement in the motion picture or television industry, a petitioner must submit:

  • (A) Evidence that the alien has been nominated for, or has been the recipient of, significant national or international awards or prizes in the particular field (e.g. Academy Award, an Emmy, a Grammy, or a Director's Guild Award); or
  • (B) At least three of the following forms of documentation:
    • (1) Evidence that the alien has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation;
    • (2) Evidence that the alien has achieved national or international recognition for achievements in the field;
    • (3) Evidence that the alien has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation;
    • (4) Evidence that the alien has a record of major commercial or critically acclaimed successes;
    • (5) Evidence that the alien has received significant recognition for achievements;
    • (6) Evidence that the alien has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field.

The consultation requirement described above in the O1A section applies to O1B petitions as well. In the case of an O1B petition, the consultation shall be made with the union representing the alien's occupational peers, and with the management organization in the area of the alien's extraordinary achievement.12 The consulting organization may instead submit a letter of no objection if it has no objection to the approval of the petition.

Proving Qualifications for O2 Visa

Pursuant to 8 C.F.R. 214.2(o)(5)(iii), The consultation requirement applies to O2 aliens as well. A consultation with a labor organization with expertise in skill in the area involved is required for an O2 alien where the O1A is an alien of extraordinary ability in a category that allows for accompaniment by an O2. Specifically, the advisory opinion, if favorable, should demonstrate that the O2 has a working relationship with the O1A and that there are no available U.S. workers to do the same job. A consultation for an O2 seeking to accompany an O1B, the consultations should be with the labor organization and management organization involved, and should demonstrate that the alien meets the requirements for O2 status with regard to the specific production.

Application Process and Admission with an O Visa

The Form I-129 cannot be filed more than one year before the work is to begin.13 O1 and O2 petitions are filed separately, and O2 petitions should be filed at least 45 days before the intended employment is slated to begin.14 Dual-intent is recognized for O1 beneficiaries, thus if an O1 beneficiary has an approved labor certification for an employment visa, this will not weigh against the denial or extension of an O1 visa petition.15 An O visa beneficiary may be granted a 10-day grace period to depart at the expiration of the O visa.16

Where the O1 beneficiary will be working for multiple employers, either the agent must file an itinerary or each employer may file separately.17

An O1 petition may be approved for the period of time determined necessary for the O1 beneficiary to accomplish the event or activity he or she is seeking to enter for, but not exceed 3 years.18 An O2 petition shall be approved for the period of time deemed necessary to assist the O1 beneficiary, but not exceed 3 years.19

An O1 petitioner may file for an extension of stay in order for the O1 beneficiary to continue to complete the same event or activity by filing a new Form I-129 explaining the reasons for the extension.20 An O2 beneficiary may have his or her stay extended along with the O1 by the same procedure. Extensions may be granted in 1-year increments, but the decision to deny an extension may not be appealed.21

Pursuant to 8 C.F.R. 214.2(o)(2)(iv)(D), a petitioner must file an amended Form I-129 petition where there is a material change in the terms and conditions of employment from that detailed in the original petition. However, additional performances for an artist or entertainer do not require an amended petition provided that the additional performances are O1 caliber.

Pursuant to 8 C.F.R. 214.2(o)(2)(iv)(C), where the O1 beneficiary seeks to change employers, the new employer must file a Form I-129 along with a request for the O1 beneficiary's stay to be extended. An accompanying O2 may only change in conjunction with the principal O1. If an O1 athlete is traded to a new team, employment authorization will automatically continue for 30 days wherein the new team must file a Form I-129.22 When filed, employment authorization is continued until the final adjudication of the petition.

O Visa Advice

Because the O visa is not cap subject like the H1B visa, it is a very good option to consider for persons who may be qualified. In addition, the O1A visa category may be an option for certain entrepreneurs. However, the documentation requirements for an O1 visa petition are extensive. Due to the complexity of the application process and the high bar that a petition must clear, an O1 petitioner and intended beneficiary should consult with an experienced immigration attorney to determine whether a O visa is appropriate.

_____________________

  1. Matter of __, WAC 02-196-50736 (AAO Sept. 16, 2002) reported in 8 Bender's Immigr. Bull. 294-95 (Feb. 15, 2003); Matter of __, WAC 01-250-52367 (AAO 2002) reported in 8 Bender's Immigr. Bull. 688-89 (Apr. 15, 2003)
  2. INA § 101(a)(15)(O)(ii)(I)
  3. INA § 101(a)(15)(O)(ii)(II)
  4. INA § 101(a)(15)(O)(ii)(III)(a)
  5. 8 C.F.R. 214.2(o)(6)(iv)
  6. 8 C.F.R. § 214.2(o)(2)(i)
  7. 8 C.F.R. § 214.2(o)(2)(E)(2)
  8. 8 C.F.R. § 214.2(o)(5)(i)(A)
  9. 8 C.F.R. § 214.2(o)(5)(ii)
  10. 8 C.F.R. § 214.2(o)(5)(i)(E)
  11. 8 C.F.R. § 214.2(o)(5)(i)(G)
  12. 8 C.F.R. § 214.2(o)(5)(i)
  13. 8 C.F.R. § 214.2(o)(2)(iii)(C)
  14. 8 C.F.R. § 214.2(o)(2)(iii)(C)
  15. 8 C.F.R. § 214.2(o)(13)
  16. 8 C.F.R. § 214.2(o)(12)(iii)
  17. Memo, Neufeld, Acting Assoc. Dir. Domestic Operations, HQ 70/6.2.18, HQ 70/6.2.19 (Nov. 20, 2009)
  18. 8 C.F.R. § 214.2(o)(6)(iii)(A)
  19. 8 C.F.R. § 214.2(o)(6)(iii)(B)
  20. 8 C.F.R. § 214.2(o)(12)(i)
  21. 8 C.F.R. §§ 214.2(o)(12)(ii), (iii)
  22. 8 C.F.R. § 214.2(o)(2)(iv)(G)

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 986-91, Print. Treatises & Primers.