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Matthews Immigration Group | Raleigh Law Firm | O-1A / O-1B

O-1A / O-1B Visas

Generally, a citizen of a foreign country who wishes to enter the United States must first obtain a visa, either a nonimmigrant visa for a temporary stay or an immigrant visa for permanent residence. The visa allows a foreign citizen to travel to a U.S. port of entry and request permission of the U.S. immigration inspector to enter the United States. Nonimmigrant visas ("NIVs") are issued to individuals who intend to remain in the United States temporarily. NIVs are designated by letters of the alphabet. The type of visa a foreign national is issued depends principally upon the nature of the foreign national's proposed activities in the United States, the duration of those activities, and in some instances, his or her nationality. It is often easiest to understand NIVs and their limitations, criteria, and characteristics by distinguishing them in terms of the principal activity authorized by the visa: (a) employment-based NIVs; (b) NIVs for students and exchange visitors; (c) NIVs for business visitors and tourists; and (d) other NIV categories including diplomats, international civil servants, and family relatives.

Temporary worker visas are for persons who want to enter the United States for employment lasting a fixed period of time and are not considered permanent or indefinite. Most of these visas requires the prospective employer to first file a petition with the U.S. Citizenship and Immigration Services ("USCIS"). An approved petition is required to apply for a work visa.

O-1 Visas for Individuals of Extraordinary Ability

The O-1 visa category is for individuals who can demonstrate outstanding or extraordinary ability in a particular field of endeavor. Applicants may include scientists, academics, business professionals, athletes, artists, and performers. All applicants, except for artists and entertainers, must demonstrate "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."
 

Sometimes, O-1 status is an excellent option for some persons subject to the J-1 two-year foreign residence requirement who are not eligible for H-1B (specialty worker) or L-1 (intracompany transferee) nonimmigrant visas or permanent resident status unless a waiver is obtained or they return home for two years. O-1 status also may be a viable alternative to H-1B status where the employer is unwilling to comply with the H-1B requirement that the employer post a public notice containing the wage to be paid the H-1B worker. Similarly, the O-1 visa option should be considered when an H-1B or L-1 visa holder is ineligible for further extensions and does not desire or cannot obtain permanent resident status.

Significantly, an "extraordinary ability" O-1 visa applicant does not need to prove to the USCIS or to a U.S. consulate that he or she is not an intending immigrant and that he or she maintains a residence abroad. Qualifying for O-1 status is not particularly difficult for those who, according to their peers, have made outstanding contributions to their field such that they satisfy the USCIS definition of extraordinary: One of the small percentage of persons who has risen to the very top of his or her field of endeavor such that he or she enjoys sustained national or international acclaim. The standard for O-1 status for persons of extraordinary ability in the arts, including the culinary arts, is less stringent.

A petition for O-1 status must first be filed by a sponsoring entity with the USCIS Service Center. Upon approval, the Form I-797 (Notice of Action) approval notice is forwarded to the nonimmigrant who will apply for the O visa at a U.S. consular post. If the foreign national is already lawfully present in the United States, a change of nonimmigrant status to O-1 is also permissible. Adjudication of O-1 petitions may take from several weeks to several months. Unlike other types of nonimmigrant visas, applicants for O-1 status are not required to have a foreign residence to which they plan to return.  While O-1 status does require that the visa holder have only a temporary intent to remain in the United States, as a practical matter, the absence of a requirement of a foreign residence means that the temporary intent requirement is applied in a somewhat relaxed fashion. O-1 petitions typically involve a substantial amount of documentary evidence demonstrating that the individual qualifies for this visa category, either through receipt of a major, internationally recognized award (e.g., a Nobel Prize), or evidence in at least three of the below categories.

A foreign national may hold O visa status indefinitely; however, the initial petition will only be approved for the period required to complete the events or work described in the petition, up to a maximum of three years. Subsequent extensions of status will be issued in one-year increments. O visa holders may work only for the sponsoring entity; however, unlike most other nonimmigrant employment-based visa categories, O visa holders may work for the sponsor pursuant to consulting contracts or other contractual arrangements in addition to a traditional employer-employee relationship. Spouses and children of O visa holders may receive O-3 visas. O-3 status does not permit employment.

O-1A Eligibility Requirements

To qualify as a person of extraordinary ability in science or business, there must be evidence that the visa beneficiary has earned acclaim by the receipt of a major internationally-recognized award or at least three of the following:

  1. Receipt of lesser nationally or internationally-recognized prizes or awards for excellence.

  2. Membership in associations in the field which require outstanding achievements of their members, as judged by recognized experts.

  3. Evidence of the beneficiary's authorship of scholarly articles in his or her field, in professional journals, or other major media.

  4. Published material in professional or major trade publications or major media about the beneficiary and his or her work.

  5. Evidence of participation on a panel, or individually, as the judge of the work of others.

  6. Evidence in the form of letters or affidavits from prominent colleagues who can confirm the beneficiary's original contributions of major significance to his or her field .

  7. Evidence that the beneficiary has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation.

  8. Evidence that the beneficiary has commanded or now commands a high salary or other compensation for services.

Where these criteria are not applicable, substitute evidence of extraordinary ability may be submitted.

O-1B Eligibility Requirements

A foreign national may establish qualification through evidence of nomination or receipt of a major nationally- or internationally-recognized award such as an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award. In the absence of such an award, individuals can establish themselves as a qualifying foreign national through at least three of the following types of evidence:

  1. Having been or will be performing a lead or starring role in productions or events which have a distinguished reputation (as evidenced by critical reviews, advertisements, press releases, publications contracts, or endorsements).

  2. Critical reviews or other published material in professional or major trade publication or in the major media by or about the alien which show that the alien has achieved national or international recognition or achievements.

  3. Evidence of performance in a lead, starring or critical role for organizations or establishments with distinguished reputations.

  4. Evidence of a record of major commercial or critically acclaimed successes in the performing arts, as shown by box office receipts or record, cassette, CD, or video sales.

  5. Evidence of significant recognition for achievements form organizations, government agencies, or other recognized experts in the field.

  6. Evidence of having commanded a high salary or other significantly high remuneration for services in relation to others.

  7. Other comparable evidence.

Applying for a Visa

As with an H-1B or an L-1 visa, an O-1 visa application is made by an employer, and the O-1 visa is valid for work only with the employer under the terms of  the O-1 petition. The basic information required from an employer for an O-1 visa petition includes the dates the organization was established, IRS employer ID number, the total number of employees, net and gross annual income for the last fiscal year, a detailed description of the proposed job, the proposed salary, and the approximate value per week of the benefits (e.g., health insurance). The employer also must state on the O-1 petition that it is willing to pay the beneficiary's "return transportation abroad" in the event the O-1 employee is terminated before the expiration of his or her visa. However, the USCIS regulations governing this "return transportation" requirement lack an enforcement provision and do not even indicate to whom the cost of transportation must be paid.

Applicants for visas should generally apply at the nearest U.S. Embassy or Consulate in the country where they live. It is important to apply for a visa well in advance of a planned travel departure date.

Completing Form DS-160, Online Nonimmigrant Visa Application, is the first step in the visa application process. After you have submitted Form DS-160, print the confirmation page and bring it to your interview. Next, pay the non-refundable visa application fee, if you are required to pay it before your interview. Then, make an appointment for an interview at the U.S. Embassy or Consulate where you pay to apply for your visa. You can learn how to schedule an appointment for an interview, pay the application processing fee, review embassy-specific instructions, and much more by visiting the website of the U.S. Embassy or Consulate where you will be applying. The wait time for an interview appointment for applicants can vary, so early application is strongly encouraged. During the visa application process, an ink-free, digital fingerprint scan will be taken. Some visa applications require further administrative processing, which takes additional time after the visa applicant's interview by a Consular Officer.

Additional Information

 

No assurances regarding the issuance of visas can be given in advance. Therefore final travel plans or the purchase of non-refundable tickets should not be made until a visa has been issued.

 

Unless canceled or revoked, a visa is valid until its expiration date. If your passport expires, you may use the valid visa for travel and admission to the United States along with your new valid passport containing the same biographic data. Do not remove the visa page. Instead, carry both passports together.

Visa Denials

 

If the consular officer finds it necessary to deny the issuance of a visitor visa, the applicant may apply again if there is new evidence to overcome the basis for the refusal.

More detailed, case-specific advice is available from Matthews Immigration Group by scheduling a consultation.

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