While working on an O-1 visa can be more flexible compared to most other nonimmigrant visas, there are some work restrictions and limitations attached to it. If you are about to apply for the O-1 visa, it is crucial to understand these restrictions to help you make the most of your status.
O-1 Visa Overview
The O-1 nonimmigrant visa is a nonimmigrant classification designed for foreign nationals with extraordinary achievements in their fields. It is made up of two subcategories: the O-1A for those in the field of sciences, business, education, or athletics; and the O-1B for professionals in the motion picture or television industry.
O-1A Evidentiary Criteria
To prove that you are highly skilled and possess extraordinary achievements in your field, you must provide evidence indicating your significant contributions and uncommon expertise in your profession. Each of the two subcategories has a list of evidentiary criteria, and you are required to meet at least three of them.
O-1A Evidentiary Criteria:
Evidence that you have received a global or national award, such as a Nobel Prize, or evidence of least three (3) out of the following eight (8) criteria:
- Documentation showing that you have received an internationally or nationally recognized award or prizes of excellence in your field
- Documentation of your membership in an association in the field requiring outstanding achievements to become a member. Your membership in the association must have been granted by other experts through your own merit.
- Published material in major or professional publications or media outlets about you and your work in the field. The publication must be about your work. If others are mentioned in the same publication, your name must have equal significant mention and attention.
- Evidence that your expertise has earned you the position to judge the work of other people in the field either as a member of a panel or individually
- Evidence of your original scholarly, scientific, or business-related contributions of major significance in your field
- Evidence that you have authored scholarly articles in the field published in professional journals or major media outlets
- Evidence that you have been employed in an essential or critical capacity for a reputable organization or company
- Evidence that you command or will command a high salary or other compensation.
O-1B Evidentiary Criteria
Evidence that you have received, or have been nominated for, significant international or national prizes or awards, such as an Academy Award, Grammy, or Director’s Guild Award, or evidence of at least three (3) of the following six (6) criteria:
- You’ve performed or will be performing as a lead or starring character in a production or event which has a distinguished reputation.
- You will have a starring role in a reputable organization.
- You have obtained national or international recognition for your achievements in the industry.
- You have earned the recognition of critics, government agencies, organizations, or other experts for your achievements in the industry.
- You earn a high salary or compensation that shows you are extraordinarily skilled in the industry.
- You can present evidence of the major commercial success of your work reported in trade journals, major newspapers, or other publications.
O-1 Visa Work Restrictions
Though this classification offers numerous opportunities and flexibility in terms of employment, there are some O-1 visa work restrictions attached to it. They include:
You Cannot Sponsor Your Own O-1 Visa
Because the O-1 visa is a classification for those with extraordinary achievements, many people assume they can sponsor themselves just as they can with the EB-1 green card, which is also designed for people of extraordinary achievement. However, according to the immigration laws guiding the O-1 application process, all O-1 visa beneficiaries (with a very few exceptions) must be sponsored by a U.S. employer or an O-1 visa agent.
While you may work for multiple employers or move from one employer to another as an O-1 holder, there are certain restrictions to this privilege. If you want to change your employer, then your new employer must submit a new I-129 to the USCIS. If your original O-1 petition was filed by an agent, an amended petition must be submitted with evidence from the new employer. It must also include a request for an extension of stay.
Material Change in Terms and Conditions of Employment
The USCIS requires your employer to file an amended O-1 petition if there is any material change to your employment terms and conditions. The amended petition must be submitted to the same service center where the original petition was filed. Keep in mind that some smaller changes do not require an amended petition.
This is where the confusion usually faced by O-1 petitioners and beneficiaries begins, as it is difficult to tell how to differentiate material and immaterial changes. In many cases, working with an immigration attorney will help you understand this, as there is an exhaustive list of what may qualify as a material change.
There are special regulations for athletes. For instance, if you move from one team to another, your employment authorization will continue with your new team for 30 days. Within the 30 days, your new team must file an I-129 on your behalf. If your new team fails to file the petition within the stipulated period, or it was filed and denied, you will lose your employment authorization.
As an O-1 holder, your employment is restricted only to the activities and events for which your visa was granted. You cannot engage in any other activity outside the itineraries submitted to the USCIS as part of your visa application. Also, your employment must commence on the date authorized by the USCIS. It must also end no later than the authorized end date.
Are There Travel Restrictions for O-1 Visa Holders?
Immigration law does not place travel restrictions on an O-1 visa. You may travel as often and as far as you want, and return to the U.S. after your trip abroad. However, it is imperative to fulfill all immigration obligations needed to maintain your status while you are away. To re-enter the U.S. after your trip, you will need:
- A passport that is valid for at least six months longer than your O-1 visa expiration date
- A valid O-1 visa as stamped in your passport.
- I-797, Approval Notice for your O-1 visa
- Your updated employment letter showing that you are still currently employed as an O-1 holder. It must include your dates of employment, job description, and salary.
Are There Limitations or Restrictions on O-1 Visa Period of Stay
One of the general misconceptions of the O-1 visa is that one can remain in the U.S. for as long as you want since there is no official limitation on the number of times the visa can be renewed. While this may be theoretically true, there is a restriction to it.
An O-1 visa is issued for however long your employment with the petitioner will last. In most cases, this initial period of stay is three years, with the possibility of obtaining extensions in increments of up to one year for as many times as your O-1 activities with the employer will last.
However, the moment your job with the employer ends, your ability to obtain renewals will also end. Unlike some other nonimmigrant visas, the O-1 does not have a grace period, which allows people to stay a little longer than their visa validity. Unless you have another O-1 visa from a different employer, you will have to leave the U.S. once your contract comes to an end.
What are the Advantages of O-1 Visa?
Despite the work restrictions mentioned above, the O-1 remains one of the most advantageous work visas. It offers you numerous benefits, which include:
Green Card Opportunity
As a “dual intent” visa, the O-1 classification allows you to adjust your status from nonimmigrant to immigrant and become a lawful permanent resident in the United States. As an O-1 visa holder, you stand a good chance of qualifying for the first preference employment-based green card category (EB-1) due to the fact that the O-1 and EB-1 have very similar requirements. However, keep in mind that there is no automatic qualification—you will still need to provide enough evidence to demonstrate your qualification for permanent residence.
We strongly recommend that you work with an immigration attorney to improve your chances for approval. One of the most beneficial aspects of the EB-1 visa is that, unlike the O-1 visa, you can sponsor the petition yourself. Apart from the EB-1, there are several other green card categories available to O-1 status, including the EB-2 and EB-3 green cards.
Derivative Visas for Your Family and Support Staff
One of the advantages of the O-1 is that it allows your dependents and support personnel to have immigration status in the United States. The O visa derivatives are the O-2 and O-3 visas and are issued with the same period of stay granted to the principal beneficiary.
If your service requires essential support which cannot be carried out by a U.S. worker, your assistant can come with you on an O-2 visa. The O-2 visa is only allowed in the case of athletes and artists.
The O-3 visa is for your immediate family members (spouse and children under the age of 21). Keep in mind that your dependents are not permitted to work while on the O-3 status. For your dependents to work, they must obtain an Employment Authorization Document (EAD). After becoming a green card holder, you will be eligible to sponsor their green card and obtain an EAD for them.
Long Period of Stay
As we mentioned earlier, after your initial period of stay (usually three years), you can request an extension. The USCIS issues O-1 extensions in increments of one year, which can be for as many times as possible as long as you still have valid O-1 employment or contract in the U.S.
O-1 Visa Processing Time
The processing time for the O-1 classification is relatively short compared to most other nonimmigrant visas. The I-129 petition usually takes between 2-3 months to process, depending on the service center in charge of your case. Some weeks after a decision has been made on your petition, you will be scheduled for an interview. After a successful interview, you can make plans to travel down to the U.S. before the start date of your employment.
How Our Immigration Attorneys Can Help
Before applying for the O-1 visa, it is of utmost importance that you know the requirements, restrictions, and benefits attached to it. This will help you to weigh your options and prepare your petitions diligently. Working with an immigration lawyer will give you a clear picture of the application process, improve your approval chances, and help you make the most of your status.
At Immi-USA, we have a team of highly qualified immigration lawyers with extensive experience with the O-1 application and employment processes. We have successfully helped many beneficiaries process and acquire their O-1 visas. Our lawyers will review your credentials and help you understand the O-1 visa work restrictions. We will also work with you to prepare your documents and file your petition to meet the O-1 evidentiary criteria. To schedule a consultation with one of our attorneys, you can contact us today by filling out this contact form.