O2 Visa Category and Evidentiary Requirements

O2 Visa Category

 

Introduction

The O2 nonimmigrant visa category exists for aliens who are seeking to enter the United States temporarily and work by accompanying and assisting the artistic or athletic performance of an O1 alien of extraordinary ability. In this article, we will examine the requirements for establishing eligibility for O2 status and general rules about the petitioning process. Please note that in this article, we will refer readers on several occasions to sections in our article on O1 visas that are also applicable to O2 petitions. We will explain the specific reason for the referral in each case as to avoid confusion.

Before reading this article, please see our full article on the O1 visa category requirements to learn about the rules for classification as an O1 alien of extraordinary ability or extraordinary achievement [see article]. Because the O2 visa category exists solely for conferring status on aliens who are coming to the United States to accompany and assist certain O1 aliens, it is important to understand the O1 category first.

Additionally, please see our full article on the rules of status for O1, O2, and O3 (derivative) aliens to learn about the regulations regarding those in the United States in valid O status [see article].

Statute

The O visa category is authorized in statute at section 101(a)(15)(O) of the Immigration and Nationality Act (INA).

The O2 category specifically is codified at section 101(a)(15)(O)(ii). This provision provides that an alien who “seeks to enter the United States temporarily and solely for the purpose of accompanying and assisting the artistic or athletic performance by an alien who is admitted [in O1 status] for a specific event or events” is eligible for nonimmigrant status.

Section 101(a)(15)(O)(ii)(I) places important limitations on the O2 category. First, the O2 category may only be used to confer status on an alien to “temporarily and solely” accompany and assist an O1 alien in artistic or athletic performances. This means that an alien who would be eligible for O2 status to assist an O1 alien would not be eligible for O2 status to assist any other individual in the exact same activity or activities. Furthermore, the statute limits the O2 category to assisting an O1 alien in “the artistic or athletic performance” by an O1 alien. Section 101(a)(15)(O)(i) provides that an alien may be granted O1 status for having “extraordinary ability in the sciences, arts, education, business, or athletics,” or for having demonstrated “extraordinary achievement” in motion picture or television productions. The narrow scope of the O2 category means that there are many situations in which an alien could be granted O1 status but where no alien would be able to accompany the O1 alien in O2 status.

Section 101(a)(15)(ii)(II) requires that an alien seeking O2 status be “an integral part” of the performance for which he or she is seeking to assist the O1 alien in performing.

Finally, section 101(a)(15)(ii)(III) sets forth two additional requirements. The first pertains to an O2 alien accompanying an O1A alien of extraordinary ability. The second pertains to an O2 alien accompanying an O1B alien of extraordinary achievement with regard to motion picture or television production.

First, section 101(a)(15)(ii)(III)(a) requires that the alien have “critical skills and experience with [the O1] alien which are not of a general nature and which cannot be performed by other individuals.” This pertains to O2 aliens accompanying O1A aliens of extraordinary ability. In short, the requirement puts the onus on the petitioner to establish that the O2 alien has specific skills and experience with the O1 alien that cannot be performed by others.

Second, section 101(a)(15)(ii)(III)(b) sets forth a requirement for O2 aliens accompanying O1B aliens of extraordinary achievement. In this case, with regard to accompanying an O1 alien working in motion picture or television production, the O2 alien must have “skills and experience with [the O1] alien which are not of a general nature and which are critical either based on”:

A pre-existing longstanding working relationship; or
The fact that significant production (including pre- and post-production work) will take place both inside and outside the United States and the continuing participation of the alien is essential to the successful completion of the production.

Finally, section 101(a)(15)(O)(ii)(IV) requires that an alien seeking O2 status establish “nonimmigrant intent,” that is, that he or she “has a foreign residence which [he or she] has no intention of abandoning.” It is worth noting that aliens seeking O1 status are permitted to have dual intent.

The spouse or unmarried child of an O2 alien is eligible for O3 status. To learn about the derivative O3 status, please see the relevant section in our O1 article [see section].

General Filing Rules

Please see our overview of the general filing rules for O visa petitions in our article on O1 visas [see section]. The general rules and procedures for filing O1 and O2 petitions are identical. Furthermore, the definition of “event” that we discuss in the relevant section of the O1 article applies in the O2 context as well.

It is important to note, however, that a petitioner seeking to accord status to an O1 beneficiary and an O2 beneficiary or beneficiaries may not seek status for both on the same Form I-129, Petition for a Nonimmigrant Worker. However, as noted in 8 C.F.R. 214.2(o)(4)(i), a petition may only be filed on behalf of an alien for O2 status in the context that the alien will be accompanying and assisting an identified O1 alien.

Under 8 C.F.R. 214.2(o)(2)(iv)(F), multiple O2 beneficiaries may be included on the same Form I-129 provided that they are assisting the same O1 alien for the same events or performances, during the same period of time, and in the same location.

Acting as a Petitioner

The relevant section of our article on O1 visas also applies to petitioning for O2 beneficiaries [see section]. Under 8 C.F.R. 214.2(o)(2)(i), a United States employer, United States agent, or foreign employer through a United States agent may file an O visa petition.

Please see our related article on agents acting as petitioners in both the O and P visa contexts to learn more [see article].

Form of Documentation

Please see the relevant section of our article on O1 visas [see section].

Evidentiary Requirements

8 C.F.R. 214.2(o)(4) sets forth the requisite evidence for an approvable O2 petition.

First, 8 C.F.R. 214.2(o)(4)(i) reiterates that “[a]n O2 accompanying alien provides essential support to an O1 artist or athlete.”

Accordingly, it notes that an alien may not procure O2 status on the basis of accompanying an O1 alien in the fields of science, business, or education. In such a case, an alien seeking to work with an O1 alien would be required to obtain a different nonimmigrant status to work in the United States.

The regulation states that the O2 classification “does not entitle [an alien] to work separate and apart from the O1 alien to whom he or she provides support.” For this reason, “[a]n O2 alien must be petitioned for in conjunction with the services of an O1 alien.”

Evidentiary Criteria for Accompanying an O1A Artist or Athlete of Extraordinary Ability

At 8 C.F.R. 214.2(o)(4)(ii)(A), the regulations require that an O2 petition establish the following in order for the beneficiary to be found to be eligible to accompany and assist an O1A artist or athlete of extraordinary ability:

That the alien is coming to the United States to assist in the performance of an O1 alien;
That the alien will be an integral part of the actual performance; and
That the alien has critical skills and experience with the O1 alien which are not of a general nature and which are not possessed by a U.S. worker.

The final point is important. The petition must not only establish that the O2 petition beneficiary is qualified to assist the O1 alien in a performance and that he or she would be an integral part of such performance, but also that he or she has “skills and experience with the O1 alien which are not of a general nature and which are not possessed by a U.S. worker.” This points to the requirement that there must be a special need for the O2 alien. If the petition fails to establish that the beneficiary has skills and experience with the O1 alien that are not general and not possessed by a U.S. worker, the petition will not be approvable even if the first two points are satisfied.

To this effect, 8 C.F.R. 214.2(o)(4)(ii)(C) requires that the evidence establish that the O2 beneficiary has “substantial experience performing the critical skills and essential support services for the O1 alien.”

Evidentiary Criteria for Accompanying an O1B Alien of Extraordinary Achievement

8 C.F.R 214.2(o)(4)(ii)(B) reflects the language of the corresponding statute. In order to qualify for O2 status for accompanying an alien of extraordinary achievement in motion picture or television production, the O2 alien must have skills and experience with the O1 alien which are not of a general nature. There are two ways in which it may be established that these skills warrant O2 status:

The skills and experience are critical based on a pre-existing and longstanding working relationship; or
With respect to the specific production, significant production (including pre- and post-production work) will take place both inside and outside the United States and the continuing participation of the [O2 petition beneficiary] is essential to the completion of the production.

In short, the petition may seek to show that the beneficiary is qualified for O2 status generally because of his or her working relationship with the O1 alien, or that O2 status is justified based on the O2 beneficiary's working relationship with the O1 alien on a specific production.

Under 8 C.F.R. 214.2(o)(4)(ii)(C), in order to establish that an alien should be granted O2 status “based on a pre-existing and longstanding working relationship,” generally, the petition must establish the experience of the O2 alien with the O1 “and that the alien has substantial experience performing the critical skills and essential support services for the O1 alien.” If O2 status is being sought based on the petition beneficiary's essentiality to the completion of a specific production, “the evidence shall establish that significant production has taken place outside the United States, and will take place inside the United States, and that the continuing participation of the alien is essential to the successful completion of the production.”

Consultation Requirement

You will find the general rules for the consultation requirement in the relevant section of our article on O1 visas [see section]. The limited exceptions to the mandatory advisory opinion discussed in the linked section apply.

In this section, we will discuss provisions specific to consultations for O2 accompanying aliens. The applicable regulations are found in 8 C.F.R. 214.2(o)(5)(iv).

The regulation sets forth that a consultation with a labor organization with expertise in the skill area involved for the O2 alien is required for an O2 alien accompanying an O1 alien of extraordinary ability. A consultation with a labor organization or management organization in the area of the alien's ability is also required for an O2 alien seeking entry for a motion picture or television production.

The regulation requires that if the advisory opinion is not favorable to the petitioner for the O2 alien, it must “set forth a specific statement of facts which supports the conclusion reached in the opinion.”

If the advisory opinion is favorable to the petitioner, it “should describe the alien's essentiality to, and working relationship with, the O1 artist or athlete and state whether there are available U.S. workers who can perform the support services.”

If the advisory opinion pertains to an O2 alien seeking to accompany an O1 alien involved in a motion picture or television production on the basis of a pre-existing and longstanding working relationship, the regulation states that “the advisory opinion should address the alien's skills and experience with the O1 alien and whether the alien has a pre-existing longstanding relationship with the O1 alien.” If the petition is instead based on the O2 alien's essentiality to the completion of a preexisting and ongoing production, the regulation states that the advisory opinion should address “whether significant production will take place in the United States and abroad and if the continuing participation of the alien is essential to the successful completion of the production.”

A consulting organization has the option of submitting a letter of no objection instead of an advisory opinion if it has no objection to the approval of the petition.

8 C.F.R. 214.2(o)(5)(i)(D) makes clear that advisory opinions are not binding on the United States Citizenship and Immigration Services (USCIS). The USCIS will take an opinion into consideration, but it will ultimately render a decision on the petition based on all of the evidence in the record.

(Sep. 14, 2018 Update): The USCIS will now allow labor unions to submit negative consultation letters (where applicable) directly. Please see our full post for details on the new policy [see blog].

Conclusion

The petitioning process for both O1 and O2 visa beneficiaries is evidence intensive. Before seeking to petition for an O visa, it is best to consult with and retain an experienced immigration attorney. First, an attorney will be able to evaluate the proposed employment and the credentials of the intended petition beneficiaries and determine whether seeking an O visa or O visas is appropriate. If not, the attorney may determine whether there is a different nonimmigrant or even immigrant visa solution that may be appropriate. In the case of petitioning for an O2 alien, if it is determined that the alien would not be eligible for an O2 visa, an attorney may determine if there is a different immigration solution available to allow the intended beneficiary to work in the United States.

Please see our full article on the approval/denial of petitions and the rules of O status to learn about what comes after the filing of an O visa

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O visa