O1 Visa Category and Evidentiary Requirements

 

Introduction

The O1 visa category is for “individuals with extraordinary ability or achievement.” There are two types of O1 visas. The O1A category is for aliens who demonstrate a record of extraordinary ability in the arts, sciences, education, business, or athletics. The O1B category is for aliens with extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry. The related O2 visa category exists for certain aliens who are coming to accompany and assist an O1 artist or athlete for a specific event or for specific events. Finally, the O3 visa category exists for the derivative spouse or children of an O1 or O2 alien.

O1 visa

In this article, we will provide a comprehensive overview of petitioning in the O1 visa category. Please see our full article on the related O2 category to learn more [see article]. Additionally, please see our full article on issues that arise for aliens on O1, O2, or O3 status [see article]. Please also see our full article on agents acting as petitioners for O1, O2, or P1 beneficiaries [see article].

Statutes

The O visa category is authorized in the Immigration and Nationality Act (INA) at section 101(a)(15)(O). The statute sets forth the parameters of the O visa categories. In the following sections, we will examine the statutory background of the O visa categories.

O1 Category

Section 101(a)(15)(O)(i) provides that an alien must meet both of the following requirements in order to qualify for O1 classification:

  • Have extraordinary ability in the sciences, arts, education, business, or athletics; and
  • Have had such extraordinary ability demonstrated by sustained national or international acclaim; or
  • With regard to motion picture and television productions, have demonstrated a record of extraordinary achievement.

Additionally, the alien must be seeking to enter the United States to continue work in the area of extraordinary ability.

The statute sets forth a separate and distinct extraordinary achievement standard for aliens who are seeking O1 classification based on motion picture or television productions. A petition for an alien based on extraordinary ability falls under the O1A classification. A petition for an alien based on extraordinary achievement falls under the O1B classification.

The statute providing for O1 classification notably does not include the requirement that the alien must have a residence abroad that he or she has no intention of abandoning. This requirement exists for most nonimmigrant work visa categories, including the O2 category. This means that an O1 visa applicant may have what is called “dual intent,” that is, both immigrant and nonimmigrant intent. This is made clear in the Department of State's (DOS's) Foreign Affairs Manual (FAM) at 9 FAM 402.13-10(B). However, the regulations at 8 CFR 214.2(o)(1)(ii)(A)(1) and (2) provide that aliens seeking to come to the United States in O visa status must be seeking to come to the United States temporarily to work in the area of extraordinary ability or achievement. Dual-intent is discussed further in the regulations at 8 C.F.R. 214.2(o)(13).

O3 Category

The O3 visa category is the derivative O visa category. Section 101(a)(15)(O)(iii) allows the spouse or child of an alien accorded O1 or O2 status to accompany or follow to join the principle O1 or O2 alien.

Regulations in 8 C.F.R. 214.2(o)(6)(iv) set the rules and limitations of the O3 category. An O3 nonimmigrant spouse or unmarried child may be admitted for the same period of admission and limitations as the principle O1 or O2 beneficiary. The O3 category does not provide for employment authorization. Therefore, an alien in the United States in O3 status is not authorized to engage in employment unless he or she is granted employment authorization separately. At 9 FAM 402.13-11, DOS consular officers are instructed to consider the lack of employment authorization with O3 status “in evaluating whether family members have furnished adequate evidence of their support while in the United States.” In the same portion of the FAM, the DOS makes clear that O3 aliens are permitted to study while in the United States.

Regulatory Definitions for Extraordinary Ability and Achievement

The regulations for the O visa categories are found generally in 8 C.F.R. 214.2(o). At 8 C.F.R. 214.2(o)(3)(ii), the regulations provide definitions for the key terms used in the statutes authorizing the O visa categories.

Firstly, “extraordinary ability” in the context of the arts “means distinction.” The regulations continue, defining “distinction” as “a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.”

Secondly, “extraordinary ability” in the context of science, education, business, or athletics is defined as “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.”

Thirdly, “extraordinary achievement” in the context of motion picture and television productions “means a very high level of accomplishment in the motion picture or television industry evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent that person is recognized as outstanding, notable, or leading in the motion picture or television field.”

In a non-precedent decision, the Administrative Appeals Office (AAO) held that the standard for “extraordinary ability” is less in the arts than in science, business, or athletics.1

Defining the “Arts”

At 8 C.F.R. 214.2(o)(3)(ii), the regulations provide a definition of “arts” in the O1 visa context.

The regulation explains that the “arts” includes “any field of creative activity or endeavor.” To illustrate, the regulation provides a non-exhaustive list of broad fields that would fall under the umbrella of the arts:

  • Fine arts;
  • Visual arts;
  • Culinary arts; and
  • Performing arts.

Additionally, the regulation explains that “arts” includes not only “principal creators and performers,” but also “other essential persons.” To illustrate, the regulation offers a non-exhaustive list of persons who would qualify as being in the field of the arts while being “other essential persons”:

  • Directors;
  • Set designers;
  • Lighting designers;
  • Sound designers;
  • Choreographers;
  • Coreologists;
  • Conductors;
  • Orchestrators;
  • Coaches;
  • Arrangers;
  • Musical supervisors;
  • Costume designers;
  • Makeup artists;
  • Flight masters;
  • Stage technicians; and
  • Animal trainers.

Petitioning Process

Due to the high standards required to demonstrate eligibility for O1 status, the regulations provide for evidence-intensive rules for O1 petitions. In the following sections, we will examine the rules for filing O1 petitions, who may file O1 petitions, and the specific evidentiary and consultation requirements for demonstrating extraordinary ability or extraordinary achievement in a qualifying field.

General Filing Rules

8 C.F.R. 214.2(o)(2)(i) sets forth the rules for filing O petitions. The petition for an O nonimmigrant is filed on the Form I-129, Petition for a Nonimmigrant Worker. An O petition must be filed not more than one year before the actual need for the O alien's services. O petitions are filed with the United States Citizenship and Immigration Services (USCIS). An O1 petition may be filed only on behalf of one alien. If a petitioner seeks the services of multiple O aliens, it must file multiple Forms I-129. Please see our article on O2 petitions to learn about filing for O2 aliens.

Additionally, it is important to understand the definition of the term “event” in 8 C.F.R. 214.2(o)(3)(ii). This term comes up often in the regulations regarding O1 and O2 visa petitions. An “event” for O purposes is defined as an activity such as, but not limited to:

  • Scientific project;
  • Conference;
  • Lecture series;
  • Tour;
  • Exhibit;
  • Business project;
  • Academic year; or
  • Engagement.

The regulation explains further that an event “may include short vacations, promotional appearances, and stopovers which are incidental and/or related to the event.” Groups of related activities may constitute an “event.” In the case of an O1 athlete, “the event could be the alien's contract.”

Acting as a Petitioner

The O1 nonimmigrant visa category does not permit self-petitioning. In this sense, it is similar to the majority of nonimmigrant work visa categories. 8 C.F.R. 214.2(o)(2)(i) sets forth the individuals and entities who may file Form I-129 petitions for O beneficiaries:

  • United States employer;
  • United States agent; or
  • Foreign employer through United States agent.

The rules for agents filing petitions are outlined in 8 C.F.R. 214.2(o)(2)(iv)(E). Additionally, the rules are fleshed out in a 2009 USCIS Memorandum titled “Requirements for Agents and Sponsors Filing as Petitioners for the O and P Visa Classifications” (“Agent Memo”) [PDF version].2

8 C.F.R. 214.2(o)(2)(iv)(E) explains that agents may file petitions in cases where the petition beneficiary is traditionally self-employed or where the beneficiary uses an agent to arrange short-term employment on his or her behalf with numerous employers. The regulation states that an agent may be:

  • The actual employer of the beneficiary;
  • The representative of both the employer and the beneficiary; or
  • A person or entity authorized by the employer to act for, or in the place of, the employer.

8 C.F.R. 214.2(o)(2)(iv)(E) then sets forth the following conditions for agents acting as petitioners:

  1. The agent performing the function of an employer must provide the contractual agreement between the agent and the beneficiary. This contract must specify the wage offered and the other terms and conditions of the employment of the beneficiary.
  2. A person or company “in business as an agent” may file a petition involving multiple employers where the agent represents both the employers and the beneficiary. In such a case, the supporting documentation with the petition must include a complete itinerary of the event or events. The itinerary must include the specific dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishments, venues, or locations where the services will be performed. Finally, the contract between the employers and the beneficiary is required. The agent has the burden of explaining the terms and conditions of employment and of supplying the USCIS with the requisite documentation.
  3. A foreign employer who files a petition for an O nonimmigrant through a U.S. agent is responsible for complying with the employer sanctions provisions of section 274A of the INA and the associated regulations in 8 C.F.R. 274a.

Regarding 8 C.F.R. 214.2(o)(2)(iv)(E)(2), the Agent Memo notes that the regulations do not describe evidence required of an agent acting on behalf of multiple employers to establish that he or she is “in business as an agent.” The Agent Memo instructs USCIS adjudicators to evaluate the evidence and determine if it establishes that “it is more likely than not” that the petitioner is in business as an agent for the series of events, services, or engagements on the petition. Additionally, the petitioner must establish that it is authorized to act as an agent for the other employers for purposes of filing the petition. The petitioner need not establish that it serves as an agent outside of the context of the petition in question.

Please see our full article to see the Agent Memo discussed in more detail in the context of both O and P petitions [see article].

Self-Employment

Although the O1 visa category is not amenable to self-petitioning, it is not completely foreclosed to self-employment. Agents may act as petitioners for O1 beneficiaries in traditional self-employment situations. All of the normal rules for agent petitioners apply.

Additionally, the DOS at 9 FAM 402.13-2 advises consular officers that while O1 beneficiaries may not file self-petitions, a separate legal entity owned by the O1 beneficiary may be eligible to file a petition on behalf of the O1 beneficiary. Whether such an arrangement would be permissible would depend on the facts of the specific case. In a 2011 article on its website, the USCIS explained that this arrangement is permissible so long as “the petitioning entity is a bona fide employer in the United States, that the petition is not based on speculative employment, and that the terms and conditions of actual employment qualify for O classification” [link].

Please see our full article on using nonimmigrant work visa classifications for investment immigration to learn about the benefits and limitations of the O1 visa category for this purpose [see article].

Form of Documentation

Under 8 C.F.R. 214.2(o)(2)(ii), the following evidence must accompany an O petition:

  • Evidence specified by the particular section for the O classification;
  • Copies of contracts between the petitioner and beneficiary, or a summary of the oral agreement between the two if there are no written contracts;
  • An explanation of the events and activities, the beginning and end dates of such activities, and an itinerary for the events and activities; and
  • A written advisory opinion from the appropriate consulting entity or entities.

8 C.F.R. 214.2(o)(2)(iii) sets forth the form that the documentation sent with an O petition must be submitted in:

  • Affidavits, contracts, awards, and similar documentation must reflect the nature of the alien's achievement. It must be executed by an officer or responsible person employed by the institution, firm, establishment, or organization where the work was performed.
  • Affidavits written by present or former employers of the alien or recognized experts certifying to the record, extraordinary ability, or extraordinary achievement of the alien must describe specifically the alien's recognition and ability or achievement in “factual terms.” It must also set forth the expertise of the individual writing the affidavit and the manner in which he or she acquired the information in the affidavit.
  • Legible photocopies of documents in support of the petition may be submitted instead of the original. However, the original must be submitted if requested by the USCIS.

Documentation Requirements for the O1A Category

Under 8 C.F.R. 214.2(o)(3)(iii), a petitioner must submit the following documentation in order to establish that an O visa petition beneficiary has extraordinary ability in the fields of science, education, business, or athleticst:

  • (A) Receipt of a major, internationally recognized award in the field, such as the 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.

Under 8 C.F.R. 214.2(o)(3)(iv), a petitioner must submit the following documentation in order to establish that an O visa petition beneficiary has extraordinary ability in the arts:

  • (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.

Documentation Requirements for the O1B Category

Under 8 C.F.R. 214.2(o)(3)(v), a petitioner must submit the following documentation in order to establish that an O visa petition beneficiary has a record of extraordinary achievement in the motion picture or television industry:

  • (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.

Consultation Requirement

Section 214(c)(3) of the INA sets forth a consultation requirement in statute for O1 and O2 petitions. The rules for the consultations are set forth in regulations at 8 C.F.R. 214.2(o)(5)(i). With limited exceptions that we will explain, O1 and O2 petitions must include a consultation. Please see our “Form of Documentation” section for rules regarding the proper form of an advisory opinion.

Under 8 C.F.R. 214.2(o)(5)(i)(A), a consultation must be with “an appropriate U.S. peer group, labor[,] and/or management organization regarding the nature of the work to be done and the alien's qualifications.” Under 8 C.F.R. 214.2(o)(3)(ii), “peer group” is defined as “a group or organization which is comprised of practitioners of the alien's occupation.” A collective bargaining representative of the employer's employees in the occupational classification for which O status is being sought may be considered the appropriate peer group. 8 C.F.R. 214.2(o)(5)(i)(A) states that a peer group “could include a person or persons with expertise in the field.”

Although the consultation requirement in 8 C.F.R. 214.2(o)(5)(i)(A) is described as “mandatory,” 8 C.F.R. 214.2(o)(5)(g) sets forth a limited exception. Under this provision, if the petitioner establishes that an appropriate peer group (including a labor organization) does not exist, the USCIS will adjudicate the petition based only on the evidence in the record.

Under 8 C.F.R. 214.2(o)(5)(i)(B), the evidence of consultation must be submitted in the form of a written advisory opinion. However, 8 C.F.R. 214.2(o)(5)(i)(E) provides for a limited exception. Under the latter provision, if the O1 alien will be employed in the field of the arts, entertainment, or athletics, and if the USCIS determines that the petition merits “expeditious handling,” the USCIS may contact the appropriate labor and/or management organization on its own for an advisory opinion if no such opinion has yet been submitted by the petitioner. The labor and/or management organization will have 24 hours to respond to the USCIS's request. The USCIS will adjudicate the petition after receiving the opinion. If the USCIS receives no response, it will adjudicate the petition without the advisory opinion.

Under 8 C.F.R. 214.2(o)(5)(i)(F), if the petition is submitted with a written opinion from a peer group, but the peer group is not a labor organization, the USCIS will submit the petition and the supporting documentation to the appropriate labor organization within five days of receipt of the petition. The USCIS will seek the collective bargaining representative of the employer's employees in the beneficiary's occupational classification if applicable. The labor organization will have 15 days to respond to the request for an opinion. If the USCIS receives no response, it will adjudicate the petition without an advisory opinion.

8 C.F.R. 214.2(o)(5)(i)(D) makes clear that neither consultations nor advisory opinions are binding on the USCIS.

Specific Consultation Requirements for O1A Aliens in the Fields of Science, Education, Business, or Athletics

8 C.F.R. 214.2(o)(5)(ii)(A) states that a consultation will be required in this case. If the advisory opinion is not favorable, it must “set forth a specific statement of facts which supports the conclusion…” If it is favorable, “it should describe the alien's ability and achievements in the field of endeavor, describe the nature of the duties to be performed, and state whether the position requires the services of an alien of extraordinary ability.” A consulting organization may submit a letter of no objection instead if it has no objection to the approval of the petition.

Specific Consultation Requirements for O1A Aliens in the Arts

8 C.F.R. 214.2(o)(5)(ii)(B) explains that the consultation for an alien of extraordinary ability in the field of arts “shall be waived” by the USCIS if the alien is seeking readmission to perform similar services within 2 years of the date of the previous consultation. The regulation advises petitioners seeking a waiver in this situation to submit a copy of the previous consultation and advise the Director handling the petition of the waiver request under this provision. The USCIS will forward a petition for which a waiver has been granted to the national office of an appropriate labor organization (when applicable).

Specific Consultation Requirements for O1B Aliens of Extraordinary Achievement

Under 8 C.F.R. 214.2(o)(5)(iii), the consultation for an alien of extraordinary achievement working on a motion picture or television production “shall be made with the appropriate union representing the alien's occupational peers and a management organization in the area of the alien's ability.” If the advisory opinion is unfavorable to the petitioner, it must set forth a statement of facts which supports its conclusion. If the advisory opinion is favorable, it must describe the alien's achievements in the motion picture or television field and must explain whether the position requires the services of an alien of extraordinary achievement. If a consulting organization has no objection to the approval of the petition, it may submit a letter of no objection instead of the above.

Conclusion

Because of the high bar for establishing eligibility for O1 visa classification, petitioners should consult with an experienced immigration attorney throughout the process. In addition to being able to assist in preparing an O1 visa petition, an experienced immigration attorney will be able to determine whether O1 classification is appropriate given the proposed employment and the alien's qualifications. In certain cases, a different nonimmigrant or even immigrant classification may be more amenable to the proposed employment situation.

To learn more, please see our articles on O2 visas [see article] and being on O status (this includes issues such as extensions of stay and the rules of O status) [see article].

_____________________

  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. Memo, Neufeld, Acting Assoc. Dir. Domestic Operations, HQ 70/6.2.18, HQ 70/6.2.19 (Nov. 20, 2009)

Resources and Materials:

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