One of the major misconceptions about the O-1 visa is that its application process must be an arrangement between an employer and an employee. Though the United States Citizenship and Immigration Services (USCIS) often use the term “employer” when referring to work visa sponsors, in the case of O-1, you don’t have to be an employee to obtain the visa. As an independent contractor, your O-1 visa application can be sponsored by an agent.
What is an O-1 Visa?
The O-1 is a non-immigrant visa designed for those who possess extraordinary achievement in their profession and has two subcategories: the O-1A and the O-1B. The O-1A is for individuals in the fields of science, the arts, business, athletics, and education while the O-1B is meant for those in the motion picture or television industry. It is considered as one of the most prestigious nonimmigrant work visas due to its relatively high requirements compared to other visas. To qualify for an O-1 visa, you are expected to be highly skilled and to be in the top percentile in your field.
Can an Independent Contractor Obtain an O-1 Visa?
Yes, you can obtain an O-1 visa as an independent contractor. Keep in mind, however, that you are subject to the same requirements as other applicants. According to the United States Citizenship and Immigration Services (USCIS), an O-1 visa beneficiary may not petition for herself or himself.
Except in a very few and rare cases, nearly all O-1 visas must be sponsored by an operating and legal U.S.-based organization or agency. Also, as an O-1 visa holder, you can only work under or through the U.S. organization that sponsored your petition. As an independent contractor or self-employed foreign national who may not necessarily have an employer-employee relationship with your sponsor, your O-1 visa must be filed by an agent. An agent may also file an O-1 visa petition on behalf of a foreign employer. The foreign employer may even be a corporation you own wholly or partially.
O-1 Visa Processing for an Independent Contractor
Just like most other work visas in the U.S, the O-1 visa is filed with an I-129, Petition for Nonimmigrant Worker. This form must be submitted to the USCIS by your agent at least 45 days before the date of your employment. The petition must include the following:
The contractual agreement between you and the O-1 visa agent, which specifies the wage and other terms and conditions of employment, must be submitted. A contractual agreement can be a summary of the terms of the written or oral agreement.
If you are going to work in multiple locations, the petition must include an itinerary with the dates and locations of the work. The itinerary must be a well-detailed explanation of the nature of activities and events that your work will involve for the validity period requested in the petition, including the start and end dates for each of the activities and events.
You must submit a well-detailed explanation of the nature of events and activities your contract will cover. The itineraries allow the USCIS to know whether the contract is indeed related to your area of expertise and can be categorized as being extraordinary. It must contain the start and end dates of each of the tasks your job will cover.
The USCIS requires O-1 applicants to include a letter from an appropriate labor organization, peer group, or experts in your field. This serves as a recommendation from the organization or person that meets the standard of being extraordinarily skilled in your profession. It is recommended that you submit the original copy of the letter containing letterheads and watermarks to demonstrate its authenticity.
O-1 Evidentiary Criteria for Independent Contractors
The O-1 visa has several evidentiary criteria, out of which an applicant must meet at least three. Depending on your field of specialization, you can work as an independent contractor either under O-1A or O-1B subcategory.
Evidentiary Criteria for O-1A
Your petition must include evidence that you have received an internationally-recognized award that is on par with a Nobel Prize. In lieu of such an award, you can show that you fulfill at least three out of the following eight criteria:
- Receipt of internationally or nationally recognized prizes and awards for excellence in your field of specialization
- Evidence that you have participated as a judge of the work of others in your field, either individually or as a member of a panel
- Published material in a professional journal or relevant media outlets about your work
- Membership in an association in your field that requires outstanding achievement. This means your membership must be based on merit and must have been granted by experts in the field.
- Evidence of authorship of scholarly works in your field, in major media outlets, or professional journals
- Evidence of original scientific or academic contributions of major significance in your field
- Evidence of employment in an essential or critical capacity for a reputable organization
- Evidence that you command a high salary when compared to others in your field – you are part of the top earners.
Evidentiary Criteria for O-1B
Your O-1 petition must include evidence that you have received, or have been nominated for, significant international or national prizes or awards in your field such as an Academy Award, Grammy, or Director’s Guild Award. Otherwise, you must meet evidence at least three of the following six criteria:
- You’ve performed or will be performing in a lead or starring role in a highly reputable production or event
- You’re going to have a starring role in a well-known organization
- Have national or international recognition for your achievements in the industry
- Recognition(s) from critics, government agencies, organizations, or other experts for your achievements in the industry
- A high salary or remuneration that shows you are extraordinarily skilled in the industry
- Evidence of the major commercial success of your work reported in trade journals, major newspapers, or other publications.
O-1 Visa Processing Time
The O-1 visa processing time is shorter than most other nonimmigrant work visas. This is because it does not involve labor certification processing or an annual cap. The I-129 petition filed by your agent will be processed within two to three months, depending on the service center in charge of your case.
A few weeks after the petition has been approved, you will be scheduled for an interview. After a successful interview, you can travel down to the United States for your O-1 contract. You may also use the premium processing service to shorten the I-129 petition processing time to 15 calendar days.
O-1 Visa Validity Period
The O-1 visa is issued with an initial period of stay lasting three years with the option to extend your stay indefinitely in one-year increments. This is one of the reasons the O-1 visa is so highly sought after, unlike most other visas that have a definite period of stay. For instance, the H-1B and L-1 visas will only give you a maximum period of stay of 6 and 7 years, respectively. As long as you can meet the extension of stay requirements, you can continue to maintain your status in the United States legally.
O-1 Visa to Green Card
If you are considering becoming a permanent resident in the United States, you can achieve this with an O-1 visa. The O nonimmigrant classification is considered to have dual intent, which allows you to adjust your nonimmigrant status to immigrant status and become a green card holder.
There are several employment-based green card categories in the U.S. However, as an O-1 holder, the EB-1 green card, which is the first preference among the categories, is likely to be closest to your qualifications. Just like the O-1, the EB-1 green card is also designed for people with extraordinary achievements.
They also have very similar application requirements. The biggest difference with the EB-1 green card is that you can self-petition for it by submitting an I-140, Petition for Immigrant Worker, to the USCIS without an employer or agent. Keep in mind, however, that an immigrant visa application is usually subjected to more scrutiny than a nonimmigrant visa. Therefore, it is always recommended that you work with an immigration attorney.
Derivative Immigration Status for Your Family and Support Staff
The O Visa classification covers some derivative visas, which allow the family members and support personnel of O-1 holders to have immigration status in the United States. These derivative visas are the O-2 and O-3 visas. They are issued with the same period of stay granted to the principal beneficiary.
The O-2 visa is for your support staff who need to assist you in carrying out your activities. Their roles must be essential and cannot be carried out by a U.S. worker. The O-2 visa is only meant for those working with athletes or artists.
The O-3 visa is for your spouse and children under the age of 21. However, tt must be noted that family members are not permitted to work while on the O-3 status. However, as soon as you get your green card, you will be eligible to sponsor their family-based green cards too. This will allow them also to become lawful permanent residents and also work in the U.S.
How Are O-1 Independent Contractors Paid?
While your contract may not be directly under an employer, your income must still be recorded under an officially regulated mode of payment. Independent contractors on O-1 visas are paid with the 1099 form. The 1099 is a service by the Internal Revenue Service (IRS), used to report income earned by independent contractors or any job arrangement other than employment. Your 1099 will be filed by the organization or person you have a contract with.
How Our Immigration Attorneys Can Help
The O-1 visa application process involves a series of rigorous steps, especially for independent contractors and self-employed individuals. It is one thing to meet the eligibility criteria, proving that you meet the requirements is another thing entirely. To avoid delays or denials and to protect your investment of time, money, and effort, it is best to work with an immigration attorney throughout the process.
Here at Immi-USA, we have a dedicated team of expert immigration lawyers with extensive experience filing for an O-1 visa for independent contractors. Our lawyers have helped many applicants file and acquire their O-1 visas. We will help you gather the necessary documents, prepare your petition, and guide you through the process. You can schedule a consultation with one of our O-1 lawyers today by filling out this contact form.