All about the requirements for getting an O-1 visa

There are different kinds of visas for foreigners who want to work in the United States. But perhaps you're a world-class athlete or a Nobel prize-winning scientist. This article talks about the O-1 visa category and what it takes to obtain one.

What is the O-1 visa?

The O-1 visa is an employment-based, nonimmigrant visa category. It is one of the types that cater to people who seek to work in the U.S. temporarily. However, not all who aim for these goals qualify for an O-1 pass, let alone obtain one.

The O-1 visa only accommodates "extraordinary" people or those that have risen to the top of their respective fields. Other visas only require a college degree as a minimum. But O-1 applicants usually have years of experience in their fields, doctorate degrees or prestigious award related to their work.

The U.S. Citizenship and Immigration Services divides the O-1 visa into two subcategories with respect to fields of work:

O-1A visa. This visa category is for individuals who have a proven record of extraordinary ability in the sciences, education, business or athletics.

O-1B visa. This visa category is for individuals with extraordinary ability in the field of arts or extraordinary achievement in the motion picture or television industry.

Characteristics of the O-1 visa

The O-1 category has several benefits as a visa compared to other types, although it also has particular limitations.

Length of validity

An O-1 visa can assure the legality of your stay in the U.S. for as long as three years maximum. But this can be extended without limits as long as you can prove to the USCIS that the extensions would be necessary for you to finish your work in the U.S.

Dual intent

If you want to skip the extensions and live permanently in the U.S., the USCIS allows O-1 visa holders to apply for a Green Card, hence the "dual intent" advantage of the visa.

In the case of other visa types, the USCIS rejects applications that show the intent of the applicant to stay permanently in the United States. Normally, the USCIS requires applicants of other visas to show evidence that they have a stable residence in their home country that they do not intend to leave any time soon. The O-1 visa application process has no such requirement.

Bringing family and support

Olympic athletes and movie stars need a support crew. O-1 visa holders have the privilege to bring their immediate family and their supporting team along with them for as long as they are in the U.S. These individuals need to avail of the O-2 and O-3 visas, which will be discussed later in the article.

Speed of the application process

The O-1 visa has a relatively faster application process compared to other visa categories. Regular processing can take as quick as two months, depending on where you file your application. Other visa applications can take more than a year.

The annual amount of applicants

The USCIS has no limits with the number of O-1 visas they approve each year, as the number of applications is not too high compared to other visas. The number, however, is rising through the years. The USCIS issued 13,865 O-1 visas in the fiscal year 2015, a large increase from the 8589 O-1 visas issued in the fiscal year 2010.

O-1 visas are also advantageous because their approval rate is around 80 to 95 percent, depending on which service center received the application.

Employer requirement

Having a U.S. employer to work for and to process your petition is a basic requirement in applying for an O-1 visa. The USCIS does not allow foreigners to process their application without a U.S. company to sponsor them.

Competitive eligibility

While the O-1 visa has a lot of advantages over other types, it also has very narrow criteria for eligibility. Only a small percentage of the population can qualify for an O-1. Here's why:

Who is eligible for an O-1 visa?

People eligible for an O-1 visa must be "extraordinary." Their professional skills must be at an expert level that has garnered national or international acclaim. It must also be a given that the purpose of their temporary stay in the U.S. is to work in their particular field.

• For O-1A applicants, their ability in the fields of science, education, business or athletics must indicate that they belong to the small percentage of people that have risen to the top of their field of endeavor.

• For O-1B applicants, people from the arts and the motion picture and television industries have different definitions of extraordinary ability. It is a must for individuals from the motion picture and television industries that their community considers them as "outstanding, notable or leading" because of their skills that must be above the ordinary. They must also have a demonstrated record of extraordinary achievements related to these skills.

For experts in the field of arts, extraordinary ability means "distinction." The USCIS defines this word as a "high level of achievement in the field of the arts." The art community considers them to be "renowned, leading or well-known" in the field of arts because they have an extraordinary degree of skill.

What can be accepted as evidence of these extraordinary abilities?

A major international award, such as a Nobel Prize, an Olympic medal, an Emmy or a Grammy, will do. Otherwise, you must fulfill at least three (3) of USCIS's list of evidentiary criteria:

As an O-1A applicant, you must have documents that indicate that:

• you have received a nationally or internationally recognized award because of showing excellence in your field;

• you are a member of an association that require outstanding achievements in your field;

• you or your work have been featured in professional or major trade publications, major newspapers or other publicity releases;

• you have contributed original scientific, scholarly or business-related works that have major significance in your field;

• you have authored scholarly articles that are published in professional journals or other major media in your field;

• you have a high salary that comes from the services you give in your field;

• you have participated on a panel as a judge of the work of others in your field; and,

• you have a critical role as an employee of an organization that has a distinguished reputation in your field.

As an O-1B applicant, you must have documents that indicate that:

• you have performed and will perform as a lead or starring role in productions that have a distinguished reputation;

• coming from critical reviews, advertisements and the like

• you have achieved national or international recognition for achievements that came from critical reviews and similar materials;

• you have a record of major commercial or critically acclaimed successes indicated by title, television ratings, box office and the like;

• you have received significant recognition for your achievements from experts, critics, government agencies and other recognized institutions or experts in the field; and

• you have a high salary that came from your services in your field.

If these criteria do not readily apply to your job, you can submit comparable evidence instead. Although, this option does not apply for those in the motion picture or television industries.

Satisfying three or more of these criteria does not guarantee approval. This list is just a guide for the USCIS. The subjective consideration of whether or not your documents sufficiently proves that you are an extraordinary individual still lies on the USCIS.

What are the requirements of the O-1 visa application process?

Petition

The process for nonimmigrant work visas, including the O-1 category, starts with filling up Form I-129, Petition for Nonimmigrant Worker. This document is the one U.S. employees or agents file to the appropriate USCIS office to reason out that the visa beneficiary is qualified for the O-1 visa according to the standards set by the government. The Form I-129 costs $460.

It is advisable that the petitioner files the form within a year before the actual work of the beneficiary starts. But to avoid further delay in processing, file the petition at least 45 days before the first day of your employment.

Documentary evidence

The O-1 visa is heavy on requiring evidence to prove that you are an extraordinary individual according to the standards set by the USCIS. The petitioner must submit the following documents along with the petition.

Evidentiary documents

These are the documents that prove you have satisfied at least three of USCIS's list of evidentiary criteria for your extraordinary ability. These can be in the form of contracts, salary statements, certificates, membership documents and the like.

Peer consultation

This document is proof that the community of your field recognizes your extraordinary ability.

The consultation must be a written advisory opinion from a peer group or an expert in your field. If the individual is from the motion picture or television industry, the consultation must come from an appropriate labor union and a management organization that has expertise in your field.

If the peer group or organization that wrote your consultation uses a watermark or other distinct signatures, make sure that the one you submit is the original, watermarked one. Sending mere copies of the document may raise issues of authenticity of your document, and can, therefore, cause delays in the application process.

The USCIS exempts certain cases from this consultation requirement:

• A case wherein the petitioner demonstrates that an appropriate peer group does not exist. In such a case, USCIS will just depend on other evidentiary documents.

• A case wherein an individual from the field of arts has already gone to the U.S. with an O-1 visa (and has, therefore, done consultation) not more than two years ago. In such a case, the petitioner must submit a request to waive the requirement alongside a copy of the first consultation.

Employment contract

You must have evidence that the beneficiary (you) and your U.S. employer had an agreement regarding your employment.

An official and legal employment contract will surely do. But the USCIS will also accept oral contracts that have proper documentation.

Acceptable evidence of oral contracts includes, but is not limited to, emails between you and your employer, a written summation of the terms of the agreement, or any other evidence that an oral agreement for the employment took place.

The oral agreement does not have to be signed by both the employer and the employee. But if you're planning to submit a summary of an oral agreement, it must contain:

• what was offered by the employer, and

• what was accepted by the employee

Itineraries

You must also show documentation of how your activities and events in the U.S. will turn out. In here, you must establish that the events related to your field of expertise will take place within the validity period of the visa that you're requesting. The itineraries requirement must contain the following parts:

• An explanation of the nature of the events or activities

• The start and end dates of the events or activities

• A copy of any itinerary for the events or activities

What happens after approval (or rejection)?

After submitting all the requirements, expect to receive the following documents from the USCIS:

• A written notice that they have received your Form I-129

• A written notice of their decision regarding your case

If the USCIS rejects your application, you can always choose to apply again. Or, with the guidance of your immigration attorney, you may explore other visa options that have wider eligibility criteria. There are also cases wherein the USCIS requests more evidence, which would require you to submit new documents and wait a little longer.

If they approve your application, the next step depends on what country you currently reside in.

Status change

If you are currently in the U.S. under a different visa and you're just applying for an O-1, all you need is to apply for a change to O-1 status. Submit Form I-539, Application To Extend/Change Nonimmigrant Status to the USCIS. This form costs $370.

Consular processing

On the other hand, if you're applying for an O-1 from your home country, you would need to apply for a visa at your country's U.S. embassy or consulate.

Consular processing starts by submitting Form DS-160, Online Visa Processing Form, to the Department of State Website. This document costs $190. Next, set up an appointment with the embassy through the website as well. Bring a printed copy of your DS-160 and other relevant documents to the interview, which would most likely last for only about 20 minutes. If it all goes well, expect to get your visa via mail in time.

How long does the application process normally take?

The USCIS normally processes O-1 visa petitions in a span of two to three months, which is relatively faster than with other visa categories. The processing time largely depends on the busyness of the center where you submitted your application.

If you want to expedite your application process, you can apply for premium processing. For $1440, you can speed up the process to 15 calendar days. The USCIS will refund your payment for premium processing if they fail to process it within the agreed period.

However, if they have finished processing your application and requested more evidence, they are no longer compelled to finish processing your application in 15 days. It is best to consult your immigration lawyer if you are fit to apply for premium processing.

Requirements for agents

Agents are representatives to the USCIS. There are three different ways an agent can function for an O-1 visa application case.

1. Agent for multiple employers. Agents for multiple employers must include the following information in the petition:

• itineraries that contain the dates of each event, the names and addresses of the employers and the names and addresses of event venues

• employment contracts of the employer and the beneficiary

• explanation of the terms and conditions of employment

1. Agent performing the function of an employer. Agents performing the function of an employer must include the following information in the petition:

• the contractual agreement between the agent and the beneficiary that contains the terms and conditions of employment, including the offered wage; and

• an itinerary containing the dates and locations of the work events.

1. Agent of a foreign employer. Agents filing I-129 petitions for foreign employers must submit the minimum, general documentary evidence as required for all O-1 petitions, which include:

• itineraries and explanation of the nature of events, including the starting and ending dates;

• employment contracts of the employer and the beneficiary containing the employment's terms and conditions; and

• a written advisory opinion from appropriate entities.

For more information on requirements for agents, see this USCIS 2009 memorandum.

How early can O-1 visa holders go to the U.S. and how long can they stay?

An O-1 visa's maximum length of validity is three years, which can be extended in yearly increments.

An O-1 visa holder can stay in the U.S. for as long as their visa is valid. But once you receive your visa, you can already go to the U.S. ten days at most before the validity period starts; and you can stay until ten days after the end of the validity. Take note that staying in the U.S. can raise problems, such as the government forcibly deporting you to your home country.

Extending the O-1 visa's validity

Certain situations may compel you to extend your employment. Here are the requirements in extending your visa's validity:

• a new Form I-129 that justifies the need for you to extend your work in the United States. It will help if you indicate in the petition that unexpected situations are the cause of your need to extend your stay

• a copy of your Form I-94, Departure Number/Admission Record Number. The U.S. Customers and Border Protection uses this form to keep track of arrival and departure of non-U.S. citizens to and from the U.S.

• a statement explaining the reasons for the extension

Take note that submitting these documents does not guarantee an extension. Just like filing for an O-1 visa, extending it takes the same analysis by the USCIS. When they approve your application, expect to receive another Form I-94.

It is also best to not file an extension request too early, as the USCIS will consider that your case does not really need an extension. Wait for a few months before filing for an extension.

Changes in employment

The USCIS outlines three significant changes that might happen to the terms of your employment and what to do when they happen.

Change in employer

In such a case, your new employer must file a new Form I-129 with the USCIS. If it was an agent that filed your petition, the agent must file an amended petition relating to the new employment as well as a request for an extension of stay.

Changes in the terms and conditions of employment

Transfer of work locations, promotions or demotions--the USCIS calls these situations as "material" changes. In such cases, the petitioner must file an amended petition to the USCIS service center that received the original petition.

Note there is a special rule for athletes. If an O-1 visa athlete transfers to another playing team, they are employed under the new team valid for 30 days. During this period, the new employer must file a new petition and wait for the approval. The athlete will lose employment if the new employer fails to submit a petition within 30 days or if the USCIS rejects the new application.

Termination of employment

This rule does not apply if the beneficiary resigns. If the employment is terminated, the employer (and, if they filed the petition, the agent) must pay for the expenses of the beneficiary in traveling back to their home country.

Who can accompany an O-1 visa holder?

Support team – O-2 visa

O-1 visa holders have the privilege to bring a working team to the U.S. with them. Examples are the coaches and other training support people of a world-class athlete, or a production crew of a film or television series director. These people can also work temporarily in the U.S. under a different type of O visa: the O-2.

The USCIS requires O-2 applicants to submit a separate and entirely new petition I-129 from the O-1 application, even though the two are linked.

The petition must contain evidence that the O-2 applicant has critical skills and experience that are essential to the work of the O-1 beneficiary. It must also contain information on the long-term experience that the O-2 applicant had working with the O-1 beneficiary. Furthermore, the petition must indicate that the O-2's skills and experience with the O-1 holder cannot be replaced by any U.S. worker, hence the need to bring another foreigner into the U.S.

There are specific eligibility rules for the different kinds of O-2 beneficiaries:

• For O-2 applicants who support individuals holding an O-1A or an O-1B in the arts, their assistance must be an "integral" part of the work or performance.

• For O-2 applicants who are in the motion picture or television industry, they must include in their petition that the film or production they will shoot in the U.S. has already started in the home country and that the continued participation of the O-2 applicant is still necessary for the production to properly end.

Like the O-1 visa, O-2 applicants must submit with the petition a peer consultation document. It must come from an appropriate labor organization. If the petitioner can demonstrate that there is no existing labor organization that can write the consultation, the USCIS will depend on the rest of the documents.

Extending the validity of an O-2 visa undergoes the same process as the O-1.

Immediate family – O-3

Family members of both O-1 and O-2 visa holders can apply for an O-3 visa. The USCIS only allows the O-1 holder's spouse and unmarried children below the age of 21 to apply for this category. O-3 visa holders can engage in studying part or full-time, but they cannot seek employment and work in the U.S.

The application process for this visa is the same as the O-2. But if you're just extending an O-3 visa's validity, you only need to file Form I-539, Application To Extend/Change Nonimmigrant Status, to the USCIS.

Legal counsel

Applying for a visa is a tedious and long process that involves the law. If you make a mistake or miss a few details, it might take you more months than you wanted before you get a visa.

It is, therefore, a general recommendation that visa applicants avail of the services of an immigration lawyer. Some charge their clients at an hourly rate. But their services are usually at a flat rate that costs around $5,000. This amount typically depends on the complexity of your case.

The takeaway

The O-1 visa is an advantageous visa category fit for extraordinary individuals. But its eligibility and documentary requirements are relatively harder to satisfy compared to other visas. Make sure to check all the boxes of the requirements and seek the aid of an immigration attorney so your application process may go smoothly. If you want more information about applying for an O-1 visa, visit USCIS's website here.

For more tips on how to navigate life in the U.S. as a newcomer, visit Nova Credit's resource library.

More from Nova Credit:

The ultimate guide to the O-1 visa

Everything you need to know about the O-2 visa

How much does an O-1 visa application process cost?

How to transition from an O-1 visa to an EB-1 green card visa

H-1B vs O-1 visa: Which should I choose?

How to get an O-1 visa extension

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