O-1 Visa Eligibility
To qualify for an O-1 visa, the beneficiary must demonstrate:
- extraordinary ability by sustained national or international acclaim and
- must be coming temporarily to the United States to continue work in the area of extraordinary ability.
Extraordinary ability in the fields of science, education, business or athletics means
“a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor.”
Extraordinary ability in the field of arts means “distinction.” Distinction means
“a high level of achievement in the field of the 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.”
To qualify for an O-1 visa in the motion picture or television industry, the beneficiary must demonstrate “extraordinary achievement” evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable or leading in the motion picture and/or television field.
O-1 Visa Application
The petitioner must file Form I-129, Petition for Nonimmigrant Worker, with the USCIS office listed on the form instructions. The petition may not be filed more than one year before the actual need for the alien's services. The I-129 should be filed at least 45 days before the date of the O-1 visa beneficiary’s employment.
The petitioner must submit Form I-129, Petition for Nonimmigrant Worker, and the following documentary evidence.
Receiving An O-1 Visa Consultation
A written advisory opinion from a peer group or a person with expertise in the beneficiary’s area of ability.
If the petition is for an individual with extraordinary achievement in motion picture or television, the consultation must come from an appropriate labor union and a management organization with expertise in the O-1 visa beneficiary’s area of ability.
Exceptions to the Consultation Requirement
If the petitioner can demonstrate that an appropriate peer group, including a labor organization, does not exist, then the decision will be based on the evidence of record.
A consultation for an O-1 visa may be waived for an alien with extraordinary ability in the field of arts if the alien seeks readmission to perform similar services within two years of the date of a previous consultation. Petitioners should submit a waiver request and a copy of the previous consultation with the petition.
A U.S. 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 place of, the employer as its agent.
Agent for Multiple Employers
An immigration petitioner who will be filing as an agent for multiple employers must establish that it is duly authorized to act as an agent for the other employers. Agents filing I-129 petitions for multiple employers must include with the petition:
- A complete itinerary of the event or events which specifies the dates of each service or engagement.
- The names and addresses of the actual employers.
- The names and addresses of the establishments, venues, or locations where the services will be performed by the O-1 visa applicant.
- Contracts between the actual employers and the beneficiary.
- An explanation of the terms and conditions of the employment with documentation.
Material Change in Terms and Conditions of Employment
If there has been any material change in the terms and conditions of the beneficiary’s employment or the beneficiary’s eligibility, the petitioner must file an amended petition on Form I-129 with the Service Center where the original petition was filed.
Special Rule for Athletes
When professional athletes with O-1 nonimmigrant status are traded from one team to another, employment authorization will continue with the new team for 30 days, during which time the new employer must file a new Form I-129.
The simple act of filing the Form I-129, within this 30-day period, extends the employment authorization at least until the petition is adjudicated.
If the new employer does not file a new Form I-129 within 30 days of the trade or it the new I-129 is denied, the athlete loses his or her employment authorization.
If the employment of an O-1 nonimmigrant beneficiary is terminated for reasons other than voluntary resignation, the employer must pay for the reasonable cost of return transportation to the O-1 nonimmigrant’s last place of residence before entering the United States. If an agent filed the petition for the employer, the agent and the employer are equally responsible for paying these cost.