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Maintaining O-1 Visa Status

Maintaining O-1 Visa Status

An O-1 visa for nonimmigrants is an extraordinary abilities visa. This means it is meant for gifted individuals who are entering the United States to work, study, or perform. An O-1 Visa affords you some special benefits when visiting the U.S. However, while maintaining O-1 Visa status, you must be sure to follow important guidelines.

O-1 Visa Background

The key to maintaining your O-1 visa status is to remain current on the requirements for this nonimmigrant visa. The O-1 is meant for foreign nationals with extraordinary achievements. By presenting evidence of the following criteria, you can make your case to the USCIS:

For the O-1A, you need three of the following:

  • A lesser award that is either nationally or internationally recognized
  • Membership in an organization that mandates your extraordinary ability for entry
  • Professional publications with your published material relevant to your field
  • Genuine significant contributions to your field
  • Scholarly articles in your field that were written by you
  • Commercial success or evidence of a large compensation as proof of your ability
  • Having been a judge of the work of your peers on a panel or individual setting.
  • Having held jobs that are pivotal to well-known organizations in your field.

Note: if you have an internationally recognized award on the level of a Nobel Prize, that will suffice in lieu of having three of the above.

For the O-1B, you will need three of the following:

  • Evidence that you have been and/or will play a lead or starring role in a well-known production.
  • Recognition for your achievements on a national or international scale.
  • Having a starring or lead role in a well-known program, performance, or organization.
  • Notable success commercially demonstrated by reviews, newspapers, or publications.
  • Recognition by organizations in your field for your extraordinary achievements.
  • A salary that demonstrates your ability.

Keep these requirements in mind as you endeavor to file for extensions or transfers. Maintaining your O-1 visa status is paramount to continuing to work in the U.S. under this visa.

Requirements for Maintaining O-1 Status

The O-1 visa is one of the most advantageous nonimmigrant work visas due to the ability to extend their status for an unlimited number of times and remain in the United States for as long they can justify the basis for their extension requests. However, as simple as that might sound, there are certain requirements you must meet for you to continue maintaining your O-1 status. You must ensure due diligence in the following areas:

Period of Authorized Stay

The O-1 visa can be granted with an initial three-year period of stay. After that, you can request subsequent O-1 visa extensions of up to one year an unlimited number of times as long as you can prove there is a valid job authorization. It is crucial that you respect the period of stay on your I-94 record. If you want an extension of stay, your petition must be submitted before the expiration of your current status. 

If the petition is not submitted within the timeframe, you will be at the risk of being “out of status”, which is one of the bases for the inability to maintain O-1 status. USCIS allows the filing of an O-1 visa extension request up to six months before the expiration date on your I-94. While it is not mandatory to request an extension that early, it is recommended that you do so at least 45 days before the expiration date.

Material Change to Your O-1 Employment Authorization

When you file for O-1 Visa status, your employer must submit a Form I-129, Petition for a Nonimmigrant Worker to the U.S. Citizenship and Immigration Services (USCIS). You also have to file an amended form if there is a “material change” in your employment. Unfortunately, there isn’t an exhaustive list of what qualifies as a material change, but there are a few guidelines as to the type of change that can qualify: 

  • Moving to a new worksite or location, specifically, if the new site is in a different city.
  • Changing job titles, jobs, or salary. If you receive a promotion or move to a job with new responsibilities, it can count as a material change, especially if you receive a new salary.
  • If you receive fewer hours or a smaller salary.
  • If you change from full-time to part-time, or vice versa.
  • Quitting or being fired from your job.
  • If your company changes in a major way. Merger, acquisition, or changes their Federal Employer Identification Number.

Some changes may be small enough that it isn’t necessary to file an amended return. However, it is important to be sure if you suspect that you or your employer needs to file. Due to the apparent ambiguities surrounding the concept of material changes, it is best to work with an immigration lawyer to help detect possible red flags that could affect your eligibility to maintain your O-1 status.

How to Address Certain Changes to Your O-1 Employment Authorization

Concurrent O-1 Employment

If you wish to do collaborative work for multiple employers while on O-1 status, each employer must file a separate I-129 petition in regards to the specific work before it begins. This type of arrangement is called a concurrent O-1.

Ending of the Employer-Employee Relationship

If the qualifying employer/employee relationship between you and your employer ends, then your O-1 status based on that specific job will also end. This will leave you with two options, which are to either have another O-1 petition filed for new employment or leave the United States. 

If you are opting for the addition of a new job or new employer, then the new employer will be required to file a new O-1 petition before the current employment ends. Ultimately, there can be no gap in your O-1 status.

Substantive Changes

If there are substantive changes in your employment, then your employer must file a new O-1 petition regarding the new work before that work begins. Instances that may qualify for substantive changes include having a new position or title, movement to a new department, or a new job description.

Changing of Employers

There are also certain requirements you must fulfill to maintain your status if you want to change employers while on O-1 status. If you change employers or jobs, your new employer has to file a new Form I-129. If an agent was the one who initially filed, they have to file an amended form with evidence from your new employer. The petition must be submitted with a request for an extension.

For athletes on an O-1 visa, there is a slight difference concerning the regulations. If an athlete on an O-1 visa moves from one team to another, his or her employment authorization will continue with the new team for up to 30 days. Within the 30-day window, the new team must file Form I-129 on behalf of the athlete. If, after the 30 days, the new team has not submitted the petition, the athlete will lose his or her employment authorization. If the petition was filed within the stipulated time but was denied, the athlete will also lose his or her employment authorization.

Travel Abroad on O-1 Visa Status

If you are required or decide to travel outside the United States, you are able to leave and return while you are on an O-1 Visa. However, re-entering the U.S. will require some important documents.

  • A passport that’s valid 6 months longer than your O-1 Visa expiration
  • A valid O-1 visa stamped in your passport (in most cases, although there are a few exceptions). If your stamps are expired, it is important to note that visa stamps are not issued inside the U.S. However, you can have your passport re-stamped at a U.S. consulate or embassy. It’s best to check your stamp expiration date before traveling abroad on an O-1 visa.
  • You will need a Form 1-797, Approval Notice. This is a multipurpose form that is issued by the USCIS. It serves as proof that the government approved your O-1 visa status in the U.S. It approves your employer’s petition to classify you under a certain vis (in this case, the O-1) and it also can serve as proof of an O-1 visa extension. It can also serve as proof that you are a qualified immigrant to enter or re-enter the U.S. 

If you are entering the U.S. by crossing the border, it is important that you have all of the above documents. You should also be patient while answering all questions clearly. Incorrect or omitted information can result in border protection denying re-entry.

There are also different procedures when traveling between the U.S. and bordering countries like Canada and Mexico. You may qualify for automatic visa revalidation without having to revalidate at an embassy or consulate. You may qualify if you meet the following criteria:

  • You have been to Mexico or Canada for fewer than 30 days.
  • You cannot be a citizen of a country that the government has determined to be a sponsor of terrorism. Countries on that list currently include Syria, Iran, and Sudan.
  • You must have an I-94 form.

O-1 Visa Status Important Factors

To maintain your O-1 Visa status, there are also a number of other things you have to pay attention to and keep up to date. Before you begin your trip, you should take a look at your passport expiration date. Whether you are a student, an athlete or a business professional, you need to have a valid passport throughout the length of your stay.

It’s ideal to have a passport expiration date that is around six months longer than your visa expiration. If you need to renew your passport, it may take time depending on the renewal process of your home country. If you renew your visa and extend your stay past your passport’s expiration, you will need to renew your passport as well.

When you enter the U.S., you fill out a Form I-94. It will serve as a record of where you are going and the address you are staying. If your address changes, you will need to file a Form AR-11 with the Department of Homeland Security. You can also report your change of address online through the USCIS change of address form.

If you choose to submit a Form AR-11 instead of using the online method, it is important to keep a record of everything you submit to DHS. Keep a copy of your AR-11 form and ask for a postal receipt. If there are any problems or discrepancies along the way, you will be able to prove that you sent the proper documentation on time. Take a look at our O-1 visa complete guide for more information on related topics.

Your Dependents

If you or your employer decides that you need to stay in the U.S. and a Form I-129 is filed to extend your visa, your spouse, and your children will also need to file to extend. Your spouse and any dependents (unmarried children under 21) must file a Form I-539, Application to Extend/Change Nonimmigrant Status.

Dependants can all file a single form along with any supporting documents. It is recommended that the Form I-129 and Form I-539 be filed together to avoid confusion, and so they are processed simultaneously. However, since they are technically separate documents, it is important that supporting documents, like passports, are produced for you and the members of your family.

O-1 Status FAQs

Can I self-petition my O-1 visa?

No, you cannot sponsor your O-1 visa yourself. The petition must be filed by a qualified U.S. employer or agency.

What happens to my status if my employment is terminated?

If your employment is terminated, you will no longer be eligible to maintain your status for that particular employment authorization. Unless you have another valid O-1 petition, you will have to leave the U.S. after the employment termination. In this case, your employer is obligated to bear the reasonable cost of your transportation back to your home country.

Can I work for multiple employers?

Yes, you may work for multiple employers while on an O-1 visa. In fact, this flexibility is one of the advantages offered by the O-1 visa. However, you should keep in mind that you are only authorized for employment by the company which sponsors your O-1 petition. This means you cannot just decide to start working for multiple random employers. Each employer that needs your service must submit a separate petition for the specific job you are hired to do.

I have dependents on an O-3 visa. What are the requirements for maintaining their status?

Your O-3 spouse and children must also extend their visas to continue living in the United States. They will need to submit Form I-539 if they will be in the U.S. when their current statuses expire. If they will be outside the U.S., they will only need to follow the entry process by applying for O-3 visas at the U.S. embassy or consulate abroad. 

They can then apply for O-3 admission at a U.S. port of entry. In addition, they must also adhere to their rules for their O-3 status. For instance, it is prohibited for an O-3 visa holder to apply for employment in the U.S. They are only allowed to apply to study either on a full-time or part-time basis. The duration of study will depend on the O-1 (primary beneficiary) worker’s allowed period of stay. 

How Our Immigration Attorneys Can Help

In all cases, it’s best to consult a qualified immigration attorney who has details pertaining to your case. Your O-1 visa represents a significant investment on your part of both time and money. The best way to protect that investment is to have an expert on your side.

Our O-1 visa attorneys have years of experience handling complex cases relating to the O-1 visa. If you are worried about maintaining your status or even starting a new petition, we can help you every step of the way. To get in touch with one of our attorneys, you can fill out our contact form and schedule your consultation today.