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O-1 Status for Aliens of Extraordinary Ability

Written by Henry J. Chang
Updated January 22, 2009

General

One of the most interesting non-immigrant categories available under the Immigration and Nationality Act ("INA") is the O category for aliens of extraordinary ability. O-1 status is available to aliens of extraordinary ability in the arts, sciences, education, business and athletics. O-2 status is available to aliens who seek entry to accompany an O-1 alien working in the field of arts or athletics and whose essential skills make them integral to the performance. O-3 status is available to dependents of O-1 or O-2 aliens. Only O-1 and O-3 status will be discussed here. O-2 status is discussed here.

An O-1 alien is defined at §101(a)(15)(O)(i) of the Immigration and Nationality Act ("INA") as an alien who:

has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim or, with regard to motion picture and television productions a demonstrated record of extraordinary achievement, and whose achievements have been recognized in the field through extensive documentation, and seeks to enter the United States to continue work in the area of extraordinary ability.

While the O-1 category clearly extends to many fields of endeavor, it most commonly sought by individual aliens having extraordinary ability in the field of arts. The reason for this is that aliens in science, education, business, athletics will often qualify more readily under other visa categories. For example, aliens in science, education or business may qualify as intracompany transferees under L-1, specialty workers under H-1B or NAFTA professionals under TN. Similarly, athletes may also qualify under the P-1 category, which includes "internationally recognized" athletes competing individually or as part of a team. Establishing international recognition under the P-1 standard is easier than satisfying the threshold applied to athletes in the O-1 category. Members of internationally recognized entertainment groups also qualify under P-1, although the threshold applied to artists (other than those in motion picture or television) in the O-1 category is roughly the same as the threshold applied in P-1 cases.

"Extraordinary" Defined

For O-1 purposes, the "extraordinary" standard is defined differently, depending upon the alien's field of endeavor, at 8 CFR §214.2(o)(3)(ii):

  1. Extraordinary ability in the field of science, education, business, or athletics means 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.
  2. Extraordinary achievement with respect to motion picture and television productions, as commonly defined in the industry, 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 the person is recognized as outstanding, notable, or leading in the motion picture or television field. Extraordinary achievement is considered a lower standard than that which is applied to aliens in science, education, business and athletics but a higher standard than which is applied to other artists and entertainers.
  3. Extraordinary ability in the field of arts means distinction. Distinction means 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.

Evidence Required

Science, Education, Business, and Athletics

According to 8 CFR §214.2(o)(3)(iii), an alien of extraordinary ability in the fields of science, education, business, or athletics must demonstrate sustained national or international acclaim and recognition for achievements in the field of expertise by providing evidence of:

  1. Receipt of a major, internationally recognized award, such as the Nobel Prize; or
  2. At least three of the following forms of documentation:
    1. Documentation of the alien's receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
    2. Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
    3. Published material in professional or major trade publications or major media about the alien, relating to the alien's work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation;
    4. Evidence of the alien's participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought;
    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 other major 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, evidenced by contracts or other reliable evidence.

  3. If the criteria in paragraph (o)(3)(iii) of this section do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence in order to establish the beneficiary's eligibility.

Motion Picture and Television

According to 8 CFR §214.2(o)(3)(v), to qualify as an alien of extraordinary achievement in the motion picture or television industry, the alien must be recognized as having a demonstrated record of extraordinary achievement as evidenced by the following:

  1. 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 such as an Academy Award, an Emmy, a Grammy, or a Director's Guild Award; or
  2. 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 as evidenced by critical reviews, advertisements, publicity releases, publications contracts, or endorsements;
    2. Evidence that the alien has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications;
    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 evidenced by articles in newspapers, trade journals, publications, or testimonials;
    4. Evidence that the alien has a record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion picture or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications;
    5. Evidence that the alien has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged. Such testimonials must be in a form which clearly indicates the author's authority, expertise, and knowledge of the alien's achievements; or
    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 other in the field, as evidenced by contracts or other reliable evidence.

The above list is virtually identical to the general list for aliens in the field of arts (see below) except that there is no provision for the submission of "comparable evidence" in such cases. Also, United States Citizenship and Immigration Services ("USCIS") will apply the higher threshold of "extraordinary achievement" to this evidence in the case of motion picture or television artists.

Arts (General)

According to 8 CFR §214.2(o)(3)(iv), in order to qualify as an alien of extraordinary ability in the field of arts, the alien must be recognized as being prominent in his or her field of endeavor as demonstrated by the following:

  1. 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 such as an Academy Award, an Emmy, a Grammy, or a Director's Guild Award; or
  2. 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 as evidenced by critical reviews, advertisements, publicity releases, publications contracts, or endorsements;
    2. Evidence that the alien has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications;
    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 evidenced by articles in newspapers, trade journals, publications, or testimonials;
    4. Evidence that the alien has a record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications;
    5. Evidence that the alien has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged. Such testimonials must be in a form which clearly indicates the author's authority, expertise, and knowledge of the alien's achievements; or
    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, as evidenced by contracts or other reliable evidence; or

  3. If the criteria in paragraph (o)(3)(iv) of this section do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence in order to establish the beneficiary's eligibility.

Petition Required

An O-1 petition may only be filed by a United States employer, a United States agent, or a foreign employer through a United States agent. The petition may not be filed more than six months before the actual need for the alien's services.

According to 8 CFR §214.2(o)(2)(iv)(E), a United States agent may file a petition in cases involving workers who are traditionally self-employed or workers who use agents to arrange short-term employment on their behalf with numerous employers, and in cases where a foreign employer authorizes the agent to act in its behalf. A United States agent may be:

  1. The actual employer of the beneficiary;
  2. The representative of both the employer and the beneficiary; or
  3. A person or entity authorized by the employer to act for, or in place of, the employer as its agent.

8 CFR §214.2(o)(2)(iv)(E) further states that a petition filed by an agent is subject to the following conditions:

  1. An agent performing the function of an employer must provide the contractual agreement between the agent and the beneficiary which specifies the wage offered and the other terms and conditions of employment of the beneficiary.
  2. A person or company in business as an agent may file the petition involving multiple employers as the representative of both the employers and the beneficiary, if the supporting documentation includes a complete itinerary of the event or events. The itinerary must specify the 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. A contract between the employers and the beneficiary is required. The burden is on the agent to explain the terms and conditions of the employment and to provide any required documentation.
  3. A contract between the employers and the beneficiary is required. However, an agent performing the function of an employer must provide a copy of the contract between itself and the alien but will not be required to produce contracts between its clients and the alien.
  4. A foreign employer who, through a United States agent, files a petition for an O-1 nonimmigrant alien is responsible for complying with all of the applicable employer sanctions.

Consultations

O-1 Petitions require consultations with an appropriate peer group (which could include a person or persons with expertise in the field), labor or management organization regarding the proposed work and the beneficiary's qualifications. In the case of O-1 consultations for aliens of extraordinary achievement in motion picture or television, consultations from both a labor consultation and management organization are required.

The petitioner must submit the required consultation(s) with the petition or show that an appropriate peer group, labor organization or management organization does not exist. "Peer Group" means a group or organization consisting of practitioners of the alien's occupation. Where a collective bargaining representative for the beneficiary's occupation classification is present at the workplace, this representative is the appropriate labor organization.

Although the petitioner can submit an advisory opinion from a non-labor organization (except for aliens in the motion picture or television industry), in such cases USCIS will still request a labor consultation. It will forward a copy of the petition and supporting documentation to the national office of the appropriate union or to the appropriate bargaining representative at the workplace, if there is one. This can delay processing of the petition, so it is advisable to obtain and submit a labor consultation with the petition. Labor consultations obtained by the petitioner prior to filing may be submitted in full satisfaction of the O-1 consultation requirement.

If the advisory opinion is not favorable to the petitioner, the advisory opinion 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 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 also submit a letter of "no objection" in lieu of the above if it has no objection to the approval of the petition. Although consultations are advisory and are not binding on USCIS, they are often given great evidentiary weight.

The requirement of a consultation may be waived if the beneficiary is an alien of extraordinary ability in the field of arts and is seeking entry under O-1 within two years of a previous consultation .

Expeditious Handling for O-1 Aliens in the Arts, Entertainment and Athletics

In a case where the alien will be employed in the field of arts, entertainment, or athletics, and USCIS has determined that a petition merits expeditious handling, USCIS will contact the appropriate labor and/or management organization and request an advisory opinion if one is not submitted by the petitioner. The labor and/or management organization has 24 hours to respond to the request. USCIS will adjudicate the petition after receipt of the response from the consulting organization. The labor and/or management organization shall then furnish USCIS with a written advisory opinion within 5 days of the initiating request. If the labor and/or management organization fails to respond within 24 hours, USCIS will render a decision on the petition without the advisory opinion.

Dual Intent

The doctrine of dual intent appears to be recognized for O-1 aliens, at least under USCIS regulations. According to 8 CFR §214.2(13), the approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an O-1 petition, a request to extend such a petition, or the alien's application for admission, change of status, or extension of stay. The alien may legitimately come to the United States for a temporary period as an O-1 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States. Please refer to the article on dual intent for additional information.

Effect of Labor Disputes

The O-1 category is also subject to "strike breaker" provisions. Therefore, if the secretary of labor certifies that a strike, labor dispute involving a work stoppage is in progress in the alien's occupation at the place where the alien will be employed, and that the employment of the alien would adversely affect the wages and working conditions of U.S. citizens and lawful permanent residents, the petition will be denied .

Duration of Status

There is no specific limitation on the period of stay for O nonimmigrants as the initial period of stay can be for the time necessary to complete the event or activity or group of events or activities for which the nonimmigrant is admitted, up to three years. "Event" is defined as including an activity such as a scientific project, conference, convention, lecture series, tour, exhibit, business project, academic year, or engagement. According to the definition, in the case of an O-1 athlete the event could be the alien's contract itself. A group of related activities may also be considered an event. The activity may include short vacations, promotional appearances, and stopovers which are incidental and/or related to the event.

An O-1 alien may be admitted to the United States for the validity period of the petition plus a period of ten days before the validity period begins and ten days after the validity period ends . However, the alien may can only work during the validity period itself . Extensions of stay, to complete the event for which he or she was originally admitted, may be authorized in increments of up to one year.

Employer Liability to Pay for Return Transportation in the Event of Early Termination

Should the employment of an alien who entered under O-1 status terminate, for reasons other than voluntary resignation, the employer and the petitioner (if different) are jointly and severally liable for the reasonable cost of return transportation for the alien to his or her last place of residence . This does not apply to an alien who entered under another category and subsequently adjusted status to O-1.

Dependents of O-1 Aliens

The spouse and unmarried minor children of the O-1 alien are entitled to O-3 nonimmigrant classification, subject to the same period of admission and limitations as the alien beneficiary, if they are accompanying or following to join the alien beneficiary in the United States. Neither the spouse nor a child of the alien beneficiary may accept employment unless he or she has been granted employment authorization.


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