Who should obtain an O-1 visa? The O-1A and the O-1B Visas are specifically designed for foreign nationals with extraordinary abilities in the fields of science, business, art, athletics, motion pictures, education, or television who wish to work for a company within the United States. Each type of visa requires specific evidence of achievement in this field, such as internationally-recognized awards, high salary, or acclaimed work.
Which O-class Visa Should I Apply For?
There are four types of O-class visas outlined in these O-1 Visa FAQs that pertain to certain individuals depending on their association with the contract of employment:
- O-1A: This is for people who can demonstrate extraordinary ability in science, business, education, or athletics.
- O-1B: This is for people who have an extraordinary ability in the arts, which include individuals associated with motion pictures or television.
- O-2: This is for any individuals that constitute an “integral or essential part” to the completion of the production, employment, or activity by the carrier of the O-1A or O-1B visa.
- O-3: This is for anyone who can be classified as either the spouse or the child of an O-1 or O-2 visa carrier.
What constitutes evidence of extraordinary ability?
The required evidence can be anything that distinguishes you from among your peers in your field. An internationally-recognized award such as a Nobel Prize or Academy Award is sufficient evidence. In the absence of this, three (3) of the following items can be substituted for each visa.
- A nationally or internationally recognized prize for outstanding achievement in your chosen field.
- Officially recognized original contributions to your field.
- Evidence of membership in an organization or association that has a membership requirement of outstanding achievement in your field.
- A notable salary or other compensation for outstanding services in your field.
- Evidence of participation in a judging panel that judges others in your field.
- Having a critical role in a relevant and distinguished organization.
- Evidence of scholarly articles written for reputable journals and other forms of media.
- Published material in publications or other forms of media that are relevant to your employer and your employer’s work in your field.
- Evidence such as advertisements, publications, or reviews of your performance or participation in reputable productions or events.
- Evidence in journals, newspapers, or other publications of your critical performance or participation in distinguished organizations or establishments.
- A notable salary or other compensation for extraordinary achievement as it compares to others within your chosen field.
- Evidence of recognition from agencies, critics, organizations, or other experts for outstanding achievements in your field.
- A record of critical acclaim or commercial success.
- The list given for evidentiary items in these O-1 Visa FAQs is not exhaustive. If you feel that you possess evidence of extraordinary ability not listed in these O-1 Visa FAQs, please contact an immigration professional.
Who can file an O-1 petition?
Just like most other employment-based visas, your O-1 petition can only be filed by your employer or an agent—you cannot submit the petition yourself. The petition must be submitted to the USCIS Service Center within the jurisdiction of your intended place of employment. The nature of your O-1 job will determine whether you need either an employer or an agent to sponsor your petition.
If you are offered a full-time job opportunity by a U.S. employer, then the employer should act as your O-1 visa petitioner by filing the petition on your behalf. In this arrangement, you would be working as an employee of the organization.
In some cases, an O-1 visa beneficiary may want to work for multiple employers—this is another advantage of the O-1 visa. In this case, you may be acting as a self-employed professional working with multiple organizations. However, you will still need an authorized person or entity to sponsor your petition. This is a situation where you can have an agent file your petition.
If you are planning to work with multiple employers through a petition filed by an agent, then contracts between you and each of the employers must be provided in the petition. Other supporting documents include an itinerary of the activities or engagements for each of the employers, and the names and addresses of each of those employers as well as the venues for each of the activities.
What is the Process of Obtaining an O-1 Visa?
O-1 Visa FAQs apply to all petitioners, and each case can be unique, so you may want to consult an immigration professional if you think your situation might be exceptional. For most, however, the first step to obtaining an O-1 Visa would be for you to file form I-129, Petition for Nonimmigrant Worker along with the associated filing fee.
This needs to be accompanied with a written advisory opinion from a distinguished individual or peer group within your employer’s field. For those petitioning for an O-1 in the area of motion pictures or television industry, the advisory opinion must have been from a relevant labor union and management organization in the employer’s field.
A copy of the contract between you and your employer must also be included. A written summation of an oral contract will also suffice as long as it contains what was offered to you by your employer and what you accepted from your employer. The last piece of information that must be filed is a detailed itinerary of the events and/or activities that you plan on participating in while in the United States.
The beginning and end dates are required to be included in this itinerary. Once all of the information is collected, our O-1 visa lawyers will file the documents, and the USCIS will begin deliberation concerning your petition. This must all be done at least forty-five (45) days but not more than a year before your employment date.
How much time should I allow for the process of obtaining an O-1 Visa?
The processing time for an O-1 visa is relatively short compared to other work visas, though you should expect anywhere from three to four months. To learn more about processing time and other information detailed in these O-1 visa FAQs, take a look at this post.
What is the difference between the O-1 visa and the H1-B visa?
There are a number of advantages to choosing to petition for the O-1 visa over the H1-B. The first is that a limitless number of O-1s can be issued to anyone who meets the qualifications. H1-B visas have a strict quota of 85,000 visas at a time, making application very competitive and admittance not guaranteed.
The second is that the extension options for the O-1 visas are in one-year increments, giving you the freedom to customize the amount of time you need to remain in the U.S. to complete your contract. H1-Bs are limited to a two-year extension even if only one year is required.
The final advantage is that H1-B carriers are obligated to comply with the foreign residency requirement and reside in their home country for two years before being able to apply for other visas or permanent resident status. O-1 visa carriers may return to the United States without completing the foreign residency requirement.
How long can I stay on an O-1 visa?
The O-1 visa is issued with an initial period of stay of up to three years, with the option to request for extension after the initial approval for an indefinite number of times. Your status may be renewed in one-year increments or until the completion of your project as long as you can provide evidence to justify the request. You may file for an extension of stay any time from six months before the expiration of your current status. The most important thing is to submit your petition before the expiration of your current status.
How can I extend my O-1 visa?
Should you require more time in the U.S. to complete your contract, you can apply for an extension provided you fall within the following qualifications:
- Your admittance into the U.S. was lawful, and your visa for that admittance has yet to expire.
- You have not transgressed the boundaries of your visa or been convicted of a crime that would jeopardize your visa status.
- Your passport will remain valid for the duration of your proposed extension.
- If you meet the above requirements, you will need to submit three documents:
- A copy of your employer’s Arrival/ Departure Record on Form I-94
- Another submission of Form I-129
- A written statement detailing the reasons for your proposed visa extension.
Emphasizing your importance to the contract and your employer’s work in your statement will help the USCIS to decide whether or not to extend your O-1 visa. If you need more information than what is given in these O-1 visa FAQs, you can visit www.uscis.gov.
Will I get deported if I overstay my visa?
If you require more time to complete your contract and your O-1 visa extension petition is denied, you can remain until the departure date given on your I-94 without fear of being forcibly removed.
If you fail to leave the United States at that time, however, you risk deportation and a possible ban on all future admittance into the United States. Should you be denied your O-1 visa extension, please contact our O-1 visa lawyers.
Does the O-1 visa allow dual intent?
Yes, the O-1 visa allows for dual intent, which means that as an O-1 visa holder, you can file for permanent residence and adjust your status from a nonimmigrant to a green card holder. Dual intent allows a nonimmigrant visa holder to obtain or continue to maintain his or her nonimmigrant status despite having the intention of obtaining permanent residence (green card). This advantage is one of the factors that distinguish the O-1 classification from some other nonimmigrant visas.
Dual intent for the O-1 is similar to that of the H-1B except for a particular difference. During the initial stage of the green card application, such as labor certification, the same dual intent rule applies to both H-1B and O-1 visa holders. However, once the application moves to the adjustment of status stage, the rule becomes somewhat different:
- An H-1B holder with a pending adjustment of status petition may travel abroad and reenter the U.S. as either an H-1B holder or on the basis of advance parole.
- An O-1 visa holder can also continue to maintain his or her O-1 status while the adjustment of status petition is pending. They may also file for an extension of status if necessary, the rule for traveling abroad is quite different. If you wish to travel while the petition is pending, you must obtain advance parole before departing the U.S. Otherwise, your pending I-485 petition may be considered to have been abandoned. Additionally, if you wish to continue working with the same employer upon your reentry to the U.S., you must also obtain an Employment Authorization Document (EAD) card.
Can my family members and support staff join me?
Yes, as an O-1 visa beneficiary, you are allowed to be accompanied by your immediate family members (spouse and children). They may also join you later after you have arrived in the United States. They will need to file for the O-3 visa and undergo the due application process. In addition, if your activities in the U.S. would require having your support staff with you, the support staff or assistant(s) may also qualify to accompany or join you. To do this, they must prove that they are an “integral or essential part” of those activities and would need to file for an O-2 visa.
Both O-2 and O-3 visas are issued with the same period of stay given to the O-1 principal beneficiary and can only be extended for the same period. In other words, at the end of your O-1 activities, your dependents and assistants on O-2 and/or O-3 visas will also need to leave the U.S.
It is important to note also that your dependents on an O-3 visa are not allowed to apply for employment in the United States. Though they may apply to study at any level, the duration of their course study cannot be beyond the overall period of stay allowed on your O-1 visa unless they change to another status that can give them more time.
Can I obtain an O-1 visa through a change of status, or do I have to go through consular processing?
You can apply for an O-1 visa either through consular processing or change of status process. However, it is important to know that each option has a different application process. If you are in the United States on another nonimmigrant status, you can apply for a change of status to an O-1 visa. Your employer will have to initiate the process by submitting Form I-129 petition to USCIS. If the petition is approved, your status will automatically be changed to O-1 upon the approval of the I-129.
However, if you opt for consular processing, your application will be continued at a U.S. consulate or embassy abroad after USCIS has approved the Form I-129 filed by your employer. You will receive a notice on how to schedule your interview at the embassy or consulate. The main concern in consular processing is that your case may be subject to administrative processing after the interview. This will delay your visa, as you would have to wait until a decision is made by the consulate.
How Our Immigration Lawyers Can Help
The prestigious status of the O-1 makes it a highly sought after visa among nonimmigrant categories. Unfortunately, its eligibility criteria make it out of reach for many applicants. The good news is you can successfully overcome those hurdles and improve your chances if you work with an immigration attorney.
At our firm, we have an excellent track record of helping O-1 applicants acquire their visas and deal with any obstacles that may appear. We will help you gather your supporting documents and file them correctly with the USCIS. To schedule a comprehensive consultation from our O-1 visa lawyers today, please fill out this form.
Additionally, our immigration lawyers assist individuals and businesses with immigrant and nonimmigrant visas, including, green card petitions, family and marriage visas, business visas such as L and H1-B visas as well as labor certifications and EB-1, EB-2, EB-3 green card petitions. We practice in all areas of immigration law, including:
- Family and Employment-Based Green Cards
- Work Visas (H-1B Visa, L-1 Visa, O-1 Visa)
- PERM Labor Certification
- Investor Visas (E-1, E-2)
- Family Visas (K-1, K-2, K-3)
- Citizenship & Naturalization
- Deportation Defense and Asylum.
Give us a call at our Fort Lauderdale Immigration Law Office
800 Corporate Dr, Ste #206 | Fort Lauderdale, FL 33334
Phone: (954) 604-6406