For foreign professionals of extraordinary ability, the O-1 visa offers a unique opportunity to work in the United States. However, career paths often change. Whether it’s a new job offer, a significant change in your current role, or a desire to work with a new agent, understanding how an O-1 visa “transfer” works is crucial. This guide provides a comprehensive overview of the process.
O-1 “Transfer” Overview
To switch employers or agents on an O-1 visa, the visa isn’t “transferred” in the traditional sense. Rather, the new employer or agent must file a new Form I-129, Petition for a Nonimmigrant Worker, on your behalf.
You may need a new O-1 petition in the following cases:
- Change of Employer: If you wish to start a new job with a different company, the new employer must file a new Form I-129 petition.
- Material Change in Employment: If the terms and conditions of your current job change significantly, your current employer must file an amended Form I-129. The U.S. Code of Federal Regulations defines a “material change” as one that may affect your eligibility for O-1 status, such as a substantial change in job duties, geographic relocation, or employers.
O-1 Agents and Transfers
VisaNaiton lawyers recommend using an agent where possible, as it offers the beneficiary the freedom to work with multiple employers rather than being tied to a single company.
An agent petitioner is a U.S. individual or entity that files the petition on your behalf to work for multiple employers. This is ideal for artists, entertainers, consultants, or any professional with short-term projects for various clients rather than for a single company.
By having the petition under one representative, you can add, remove, and transition between different work engagements without needing to file a new O-1 transfer petition for each one.
However, if you decide to leave your current agent and sign with a new one, the new agent must file a completely new I-129 petition for you.
O-1 Transfer Process: Step-by-Step
Navigating an O-1 change of employer involves:
Step 1: Job Offer and Initial Assessment
Once you have a new job offer, the prospective employer or agent must agree to file a new petition.
Step 2: Preparing and Filing Form I-129
The new petitioner must complete and file Form I-129 with USCIS. The new petition must include substantial evidence, including:
- A written consultation from an appropriate peer group or labor organization.
- USCIS may waive the consultation requirement for an O-1 artist, entertainer, or athlete seeking to perform similar services, provided the new petition is filed within two years of a previous consultation.
- A copy of the new employment contract(s).
- An itinerary of events or activities, especially if an agent is the petitioner.
- Updated evidence of your extraordinary ability.
Step 3: USCIS Adjudication
USCIS reviews the new petition and supporting documents.
Step 4: Approval and Commencement of New Employment
Upon approval, you receive a Form I-797, Approval Notice. You cannot legally begin working for the new employer until USCIS approves the new petition.
O-1 Visa Extension
When you petition for an O-1, your stay in the United States lasts as long as the time your event, tour, or project requires you to be there, with a maximum initial period of three years. This is referred to as the validity period.
- You are also given a grace period of 10 days before the validity period begins and 10 days after it ends to be in the US. This time allows you to prepare for both arrival and departure, but you cannot work during this phase.
- You are allowed to extend your period of stay an unlimited number of times if the authorized employment requires more time.
- Your O-1 visa extension application must be complete and strong to avoid an extension denial.
To apply for an extension, you will need to send three documents to the USCIS:
- A Form I-129, Petition for Nonimmigrant Worker.
- A copy of the Form I-94, Arrival and Departure Record, that the visa holder was given when entering the US (possibly on the plane). This is the form that any non-citizen has to fill out when entering the country. It has a record of your arrival date and your originally scheduled departure date.
- Evidence of Continued Work: This could include an updated contract, a detailed itinerary for the upcoming year, or other proof of the ongoing need for your services.
If the beneficiary has a spouse or children with them, they must also file a Form I-539, Extend/Change Nonimmigrant Status. This should ideally be filled at the same time.
Consult a Qualified Immigration Lawyer
In all cases, it’s best to consult a qualified immigration attorney to evaluate details pertaining to your case. VisaNation Law Group O-1 visa attorneys have years of experience handling complex O-1 visa cases. Contact us today for a consultation!