O Visa Petition Approval and Being on O1, O2, or O3 Status

O visa petition

 

Introduction

In this article, we will examine the petition approval process and rules of status for O1 aliens of extraordinary ability or extraordinary achievement, O2 accompanying aliens, and O3 spouses and children of O1 and O2 aliens. Before reading this article, please see our full articles on the eligibility requirements and petition documentation requirements for O1 aliens [see article] and O2 aliens [see article].

Approval and Validity of O Visa Petition

8 C.F.R. 214.2(o)(6) sets forth the rules for the approval and validity of O visa petitions. If an O visa petition is approved, the United States Citizenship and Immigration Services (USCIS) will notify the petitioner of the approval of the petition on the Form I-797, Notice of Action.

8 C.F.R. 214.2(o)(6)(ii)(A), if an O visa petition is approved before the date that the petitioner indicated the alien's work will begin, the approved petition and the approval notice will show the actual dates requested by the petitioner. Under 8 C.F.R. 214.2(o)(6)(ii)(B), if the petition is approved after the date requested by the petitioner, it will show a validity period beginning with the date of the approval of the petition.

Under 8 C.F.R. 214.2(o)(6)(iii)(A), an approved O1 petition shall be valid for a period of time determined by the USCIS to be necessary to accomplish the event or activity for which the petition was filed. This period cannot exceed 3 years. 8 C.F.R. 214.2(o)(6)(iii)(B) sets forth a similar requirement for the approval of an O2 petition, except in that case, the USCIS considers the period of time necessary for the O2 alien to assist the O1 alien in accomplishing the event or activity. The three-year limitation means that the USCIS cannot approval a petition for a period in excess of three years, even if that period is requested by the petitioner. This is made explicit at 8 C.F.R. 214.2(o)(6)(ii)(C).

Under 8 C.F.R. 214.2(o)(6)(iv), the O3 spouse or child(ren) of an O1 or O2 beneficiary are subject to the same period of admission and limitations as the principle O1 or O2 beneficiary.

In the Department of State's (DOS's) Foreign Affairs Manual (FAM) at 9 FAM 402.13-10(G), the DOS instructs consular officers that they may restrict visa validity in certain cases to less than the period of the validity of the approved petition or authorized period of stay

Denial of Petition

Under 8 C.F.R. 214.2(o)(7), if an O visa petition is denied, the USCIS must notify the petitioner of the denial of the petition and the reasons for the denial. The petitioner will have the right to appeal the denial in accordance with 8 C.F.R. 103.

If the DOS Finds Beneficiary to be Ineligible

Under DOS regulations at 22 C.F.R. 41.55(d), if a consular officer determines that an alien seeking an O visa on the basis of an approved petition is not entitled to O visa classification, the consular officer must suspend action on the application and submit a report to the approving Department of Homeland Security (DHS) office.

However, 9 FAM 402.13-5(B) instructs consular officers that “[t]he large majority of approved O petitions are valid.” Furthermore, while the FAM notes that the alien has the burden of establishing eligibility for the visa sought, it instructs consular officers that mere “[d]isagreement with DHS interpretation of the law or facts … is not sufficient reason to ask DHS to reconsider its approval of the petition.”

Admission

Under 8 C.F.R. 214.2(o)(10), the beneficiary of an O visa petition may be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period of the petition begins and 10 days after the validity period ends. However, the O beneficiary may only engage in his or her O visa employment during the validity period of the petition.

However, please note that the 10-day grace periods are discretionary. See 81 FR 82398, 82437 (Jan. 17, 2017) [PDF version].

Amended Petitions

Under 8 C.F.R. 214.2(o)(8)(i)(A), the petitioner is required to notify the USCIS of any changes to the terms and conditions of employment of an O visa beneficiary which may affect the beneficiary's eligibility for his or her status. If the petitioner continues to employ the beneficiary, it must file an amended Form I-129, Petition for a Nonimmigrant Worker, explaining the changes. If the petitioner no longer employs the beneficiary, it must send a letter explaining the changes to the USCIS.

Under 8 C.F.R. 214.2(o)(2)(iv), an amended petition is required when the changes are “material,” that is, when they may weigh on the beneficiary's eligibility for O status. This regulation states that in the case of an artist or entertainer, the petitioner may add additional performances or engagements during the validity period of the petition without filing an amended petition. However, such performances or engagements must “require an alien of O1 caliber.”

If a petitioner is unsure whether a change is significant enough to warrant an amended petition, it should air on the side of caution and consult with an experienced immigration attorney expeditiously.

Change of Employer

Under 8 C.F.R. 214.2(o)(2)(iv)(C), if an O1 or O2 alien in the United States seeks a change of employer, the new employer must file a Form I-129 petition and a request to extend the alien's stay. An O2 alien may only change employers in conjunction with the O1 alien whom he or she was granted status to accompany. If the O1 or O2 petition was filed by an alien, the amended petition must be filed with evidence relating to the new employer along with a request for an extension of stay.

Traded O1 Athletes

In the case of a traded professional O1 athlete, 8 C.F.R. 214.2(o)(2)(iv)(G) states that employment authorization will automatically continue for 30 days after the O1 athlete is traded to another organization. Within that 30-day period, the new organization must file a Form I-129 on behalf of the alien. If the new organization fails to file the Form I-129 in that period, the employment authorization will cease. If the Form I-129 is timely filed, the O1 athlete will be deemed to be in valid O1 status until the petition is adjudicated. If the petition is denied, employment authorization will cease.

Petition Revocation

Under 8 C.F.R. 214.2(o)(8)(i)(B), the USCIS may revoke an O visa petition at any time. A petition may be revoked even after its validity period expired.

Under 8 C.F.R. 214.2(o)(8)(ii), the USCIS will automatically revoke an unexpired O visa petition under the following circumstances:

The petitioner, or the named employer in a petition filed by an agent, goes out of business;
The petitioner files a written withdrawal of the petition; or
The petitioner notifies the USCIS that it no longer employs the beneficiary.

8 C.F.R. 214.2(o)(8)(iii)(A) sets forth a list of scenarios under which the USCIS will send the petitioner a notice of intent to revoke a petition. The USCIS will send a notice of intent to revoke a valid O visa petition under the following circumstances:

1. The beneficiary is no longer employed by the petitioner in the capacity specified in the petition;
2. The statement of facts contained in the petition was not true and correct;
3. The petitioner violated the terms or conditions of the approved petition;
4. The petitioner violated the requirements set forth in the statutes and regulations for O nonimmigrant status; or
5. The approval of the petition violated the applicable regulations or involved gross error.

Under 8 C.F.R. 214.2(o)(8)(iii)(B), the USCIS must include a detailed statement of the grounds for the petition revocation with the notice of intent to revoke. The petitioner may submit evidence in rebuttal of the grounds within 30 days of the date on the notice. The USCIS will consider all relevant evidence presented in determining whether to revoke the petition.

Under 8 C.F.R. 214.2(o)(9)(ii), the petitioner may appeal the revocation of a petition that was revoked on notice. However, automatic revocations may not be appealed.

Limited-Use 60-Day Grace Periods

On January 17, 2017, new regulations went into effect providing for a limited-use 60-day grace period for an O1 nonimmigrant whose O1 employment ceases. The grace period also applies to O3 dependents. It is important to note that there is no such grace period for O2 nonimmigrants.

The regulation for the 60-day grace period is found in 8 C.F.R. 214.1(l)(2). It provides that the O1 nonimmigrant and any dependents “shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien's classification was based, for up to 60 days or until the end of the authorized validity period, whichever is shorter” (emphasis added). The DHS has discretion to eliminate or shorten the 60-day grace period.

The 60-day grace period does not accord employment authorization. Furthermore, it does not mean that an O1 or O3 nonimmigrant will be considered to be maintaining status if he or she would be out of status for any reasons aside from the cessation of employment. Additionally, the 60-day grace period may only be applied once per petition validity period.

During a 60-day grace period, a benefitting nonimmigrant may explore his or her options for continuing to work in the United States. This may include entertaining job offers from employers willing to file a new petition along with an extension of stay request, seeking a change of status (e.g., to B1 or B2 visitor), or even taking the time to prepare for departure from the United States.

Please see our full article on the 60-day grace period for a more detailed discussion [see article]. An O1 nonimmigrant facing the cessation of his or her employment should consult with an experienced immigration attorney immediately for an evaluation and expert guidance.

Extension of Petition Validity

Under 8 C.F.R. 214.2(o)(11), a request for an extension of petition validity is filed by the petitioner on the Form I-129. Such a request may be made in order that an O1 or O2 petition beneficiary “continue or complete the same activities specified in the original petition. Supporting documentation is only required if requested by USCIS. An extension request may only be filed if the original petition is not expired.

Extension of Stay

8 C.F.R. 214.2(o)(12) sets forth the rules for seeking an extension of stay.

Under 8 C.F.R. 214.2(o)(12)(i), a petitioner must use the Form I-129 to request an extension of nonimmigrant stay for an O1 or O2 nonimmigrant to continue to complete the same event or activity. The Form I-129 must be accompanied by a statement of reasons for the extension. The dates must be the same for the petition and the beneficiary's extension of stay.

Under the regulation, the O1 or O2 nonimmigrant beneficiary must be physically present in the United States at the time of the filing of the extension of stay. The alien may leave the United States while the petition is pending. In such an event, the petitioner may request that the USCIS cable notification of the approval of the petition and extension request to the consular office abroad where the alien will apply for a visa.

In adjudicating the extension of stay request, the USCIS will make separate determinations on the petition itself and the extension request. However, both are filed on the Form I-129

Under 8 C.F.R. 214.2(o)(12)(ii), an extension of stay for an O1 or O2 nonimmigrant may only be authorized in increments of 1 year. The extension must be for the O1 or O2 nonimmigrant to complete the same event or activity for which he or she was admitted. The 10-day grace period at the end of the petition applies.

Under 8 C.F.R. 214.2(o)(12)(iii), the denial of an extension of stay request may not be appealed.

Dual Intent Permitted for O1 Nonimmigrant

As we discussed in our article regarding eligibility for O1 nonimmigrant status, an O1 nonimmigrant is not required to establish nonimmigrant intent. An O3 family member of an O1 nonimmigrant also does not have to establish nonimmigrant intent. However, O2 nonimmigrants must establish nonimmigrant intent. Therefore, the rest of this section does not apply to O2 nonimmigrants.

8 C.F.R. 214.2(o)(13) builds on this provision. The regulation makes explicit that the approval of a permanent labor certification or the filing of a preference petition “shall not be a basis for denying an O1 petition, a request to extend such a petition, or the alien's application for admission, change of status, or extension of stay.” The regulation further clarifies that an alien may “come to the United States for a temporary period as an O1 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become to become a permanent resident of the United States.”

An O1 nonimmigrant may seek to transition to the related EB1 immigrant preference category if he or she intends to become a lawful permanent resident. Please see our full article to learn more [see article].

Strikes and Labor Disputes Involving Work Stoppages

Under 8 C.F.R. 214.2(o)(14)(i), if the Secretary of Labor certifies that a strike or other labor dispute involving a work stoppage of workers is in progress where an O1 or O2 beneficiary is to be employed, and that the employment of the O1 or O2 beneficiary would adversely affect the wages and working conditions of U.S. citizens or lawful permanent resident workers, the petition will be:

(A) Denied if it has not been already approved; or
(B) Suspended if the petition has been approved but the alien has not yet entered the United States or commenced employment (an application for admission based on a suspended petition will be denied).

Under 8 C.F.R. 214.2(o)(14)(ii), a petition will not be denied or suspended on the basis of a strike or other work stoppage that has not been certified by the Secretary of Labor.

Under 8 C.F.R. 214.2(o)(14)(iii), if an O1 or O2 alien has already began working in the United States under an approved petition and is petitioning in a strike or labor dispute involving a work stoppage of workers, the alien will not be deemed to be failing to maintain his or her status solely on account of past, present, or future participation in such strike or labor dispute. It does not matter whether the strike or labor dispute involving a work stoppage has been certified by the Secretary of Labor. However, the alien will still be subject to the following conditions:

A. The alien will be subject to all applicable provisions of the statutes and regulations relating to his or her status;
B. The status and authorized period of stay of the alien is not modified or extended by virtue of his or her participating in a strike or other labor dispute.
C. Although participation by an O nonimmigrant in a strike or labor dispute involving a work stoppage will not constitute a ground for deportation, the alien will be subject to removal of he or she violates status or remains in the United States beyond the applicable authorized period of stay.

Return Transportation Requirement

Under 8 C.F.R. 214.2(o)(16), if an employer terminates the alien's employment and the petitioner are jointly and severally liable for the reasonable cost of return transportation of the alien abroad. Liability does not attach if the alien resigns from the employment voluntarily.

Derivative O3 Beneficiaries

Under 8 C.F.R. 214.2(o)(6)(iv), an alien in O3 status may not engage in employment without having separate employment authorization. However, study is permitted while in O3 status.

Conclusion

This article provides a detailed overview of the regulations regarding O nonimmigrant status. A petitioner should consult with an experienced immigration attorney for guidance on issues such as amended petitions and extensions of stay. O nonimmigrants should consult with an experienced immigration attorney for guidance on issues such as change of status and applying for permanent resident status.

Please refer to the introduction for links to our articles on establishing eligibility for O1 and O2 nonimmigrant status and general overviews of the two categories.

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O visa