Have you heard of the O-1 visa? One common mistake individuals make about this visa, also known as a contract visa, is that there must be an arrangement between an employer and an employee. USCIS frequently uses the word “employer” when explaining information pertaining to work visa sponsors, but with the case of O-1, you do not have to be an employee in order to get the visa. If you are an independent contractor, your O-1 visa application can be sponsored by an agent. With this being the case, it makes the O-1 a very flexible option and all-encompassing if you meet the other eligibility requirements for the program.
What is an O-1 Visa?
The O-1 is a non-immigrant visa is created for those who have extraordinary achievements in their profession and it is broken down into 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. Why is it considered a prestigious visa? This is due to the stringent requirements you must have to qualify for an O-1 visa – you must be highly skilled and in the top percentile in your field.
Learn more about employment-based visas.
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 USCIS an O-1 visa beneficiary may not petition for herself or himself.
Except in 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 for Self-Employed Contractors
In order to self-petition, you will need to show that you have a legal entity that is owned by you, that will in turn be filing the petition on your behalf and name you as the beneficiary. You will need to demonstrate that you are the owner of the company and show an ’employer-employee’ relationship with others at the company.
Can you be the sole manager, operator, and employee? No, but you can sit on a Board of Directors as the sole or majority stockholder of the corporation. Documents that can help bolster your can and prove the employer-employee relationship include contracts and purchase agreements, evidence of a Board of Directors with unique responsibilities, company by-laws, etc.
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. However, due to the highly specialized nature of the O-1 program, you will also have to submit the following 3 key elements in your O-1 petition.
1 – Contractual Agreement
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.
3 – Consultation
The USCIS requires O-1 applicants to include a letter from an appropriate labor organization, peer group, or experts in their 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 under the contractor visa, either the O-1A or O-1B subcategory.
Evidentiary Criteria for O-1A
Your O-1A 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-1B 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 of 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, which will cost you $2,500.
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, it 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.
Do Independent Contractors Need Work Authorization?
Independent contracts must have work authorization to work in the U.S. It is a requirement under U.S. law, and the immigration system provides various options to work legally in the country. One of those options is the O-1 visa for independent contractors, however, it is not the only one. There are many employment-based visas available.
Now, in the context of an O-1 visa, individuals that hold the visa are not required to obtain work authorization or EAD. This is because once you already have the O-1 visa, you are not required to get any other work permits or authorization. The visa itself qualifies you to work for your employer in the U.S.
If you were to hire an independent contractor who does not have work authorization, you could sustain serious criminal or civil repercussions. This also applies to hiring contractors that employ workers without work authorization.
In the U.S., you can face civil fines for:
- Hiring an unauthorized alien knowing that the individual does not have the authorization to work in the U.S.
- Not complying with employment verification and not submitting Form I-9. Although this may not be a mandatory requirement when hiring an independent contractor, it is beneficial to perform the verification in order to limit your liability. The verification should especially be performed if it is required in order to comply with the internal policy of your company.
- Discriminating against a candidate that is legally allowed to work in the U.S. In this situation, your company might be in trouble if you have undergone a recruitment process (even if for independent contractors) and you have hired the one that does not have work authorization instead of one that does.
- Not notifying U.S. Homeland Security of your independent contractor’s ineligible work authorization.
How to Choose an O-1 Visa for Independent Contractors
The great news is that there is no hard cap on the amount of O-1 visas issued per year and it typically has a high approval rate but with that said it is ever important to choose the right immigration attorney to handle your case. Often when people try to cut corners by filing their own cases, they end up making very avoidable errors that can jeopardize the entire thing. Here are some characteristics to look out for when selecting one:
- Years of experience in the industry and a team that has specialization in O-1 visa cases
- Review the lawyer’s credentials and education as well as certifications and online reviews
- Upfront communication and responsiveness to questions
- Transparent legal fees and billing structure – See O-1 Visa Fees