The O-1 Extraordinary Ability Work Visa Category and its Correlation to EB-1 Extraordinary Ability, EB-1 Outstanding Researcher/Professor, and EB-2 National Interest Waiver Permanent Residence Cases

Common Misunderstandings about O-1 Visas

One common misconception is that one must be “famous” like David Beckham in football (soccer) or Antonio Banderas in the movies or Justin Bieber in music to qualify for an O-1 extraordinary ability work visa. Many also incorrectly think that this classification only applies to those who have won a Nobel Peace Prize. While some of our clients have indeed starred in sports or regularly have their name displayed on movie billboards as a leading actor or actress, many successful O-1 work visa beneficiaries are not household names – they are just elite within their occupations.

Many foreign nationals also incorrectly think that to obtain permanent resident (green card) status in the EB-1 Extraordinary Ability, EB-1 Outstanding Researcher/Professor, or EB-2 National Interest Waiver (NIW) I-140 Immigrant Petition categories that one must first be in O-1 extraordinary ability work visa category. That is inaccurate. We have secured such I-140 approvals when beneficiaries have been in a wide variety of temporary visa categories such as F-1, J-1, TN, E-2, and H-1B. We have even secured such I-140 approvals when the beneficiary is living abroad. While it is true that some I-140 beneficiaries are in O-1 visa status, it is not a prerequisite. Furthermore, we have not witnesses a strong bias towards approvals if the beneficiary is in O-1 work visa status – rather USCIS tends to evaluate each case on the strength of the evidence and the argument.

Where the O-1 is Useful

Where the O-1 category is often useful is that many times companies, universities, and beneficiaries contact us when their H-1B, L-1B, J-1 or other status is close to reaching its maximum and they or their employer has not initiated a permanent residence (green card) case at all or in a time frame that will enable to remain in the U.S. So they are about to run out of time. If they have elite caliber credentials, and an employer is willing to sponsor them, the O-1 category can yield an initial approval of up to three years in length. This may not only stabilize the foreign national’s right to be in the U.S. and continue their career, but also allows additional time to continue to amass elite credentials that may result in a PERM exempt approval like EB-1 or NIW.

Types of O-1 Work Visas and Major Criteria

To qualify for an O-1 work visa, the beneficiary must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability.

O-1A Work Visas in Science, Education, Business or Athletics

According to the Immigration and Nationality Act (INSA), extraordinary ability in the fields of science, education, business or athletics means a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor. Roughly translated, one must show one really stands out as amongst the cream of the crop in one’s field – and it not just competent, good or even very good.

Evidentiary Criteria for an O-1A Work Visa

Furthermore, it is not good enough to be a top-level expert – one must prove it. O-1 petitions must submit evidence that the beneficiary has received a major, internationally-recognized award, such as a Nobel Prize, or evidence of at least (3) three of the following:

• Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor
• Membership in associations in the field for which classification is sought, which require outstanding achievements, as, judged by recognized national or international experts in the field
• Published material in professional or major trade publications or major media about the beneficiary related to the beneficiary’s work in the field for which classification is sought
• Original scientific, scholarly, or business-related contributions of major significance in the field
• Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought
• A high salary or other remuneration for services or that the beneficiary will command a high salary or other remuneration for services as evidenced by contracts or other reliable evidence
• Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought
• Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation

If the above criteria do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence in order to establish the beneficiary’s eligibility.

Evidentiary Criteria for an O-1B Work Visa for the Arts or Motion Pictures

Extraordinary ability in the field of arts means distinction. Distinction means a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.

To qualify for an O-1 visa in the motion picture or television industry, the beneficiary must demonstrate extraordinary achievement in motion picture and television productions, which means a very high level of accomplishment in the motion picture or television industry as evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable or leading in the motion picture and/or television field.

The petitioner must submit evidence that the beneficiary has received, or been nominated for, significant national or international awards or prizes in the particular field, such as an Academy Award, Emmy, Grammy or Director’s Guild Award, or evidence of at least (3) three of the following:

• Performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements;
• Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications;
• Performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials;
• Demonstrated a record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers or other publications;
• Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the beneficiary is engaged, with the testimonials clearly indicating the author’s authority, expertise and knowledge of the beneficiary’s achievements; and
• Commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence.

If the above standards do not readily apply to the beneficiary’s occupation in the arts, the petitioner may submit comparable evidence in order to establish eligibility (this comparable evidence exception does not apply to the motion picture or television industry).

Other Observations About the O-1A and O-1B Categories

There are a ton of issues that can derail an O-1 work visa case such as whether an agent can or should file the case or not; multiple employer dynamics; the details of the employment or consulting contract; the itinerary; the oftentimes irregular compensation of O-1 beneficiaries, and the dynamic of accompanying family members or significant others.