The O-Visa includes three main sub-categories: the O-1A visa, the O-1B visa and the O-2 visa. The O-3 visa is for spouse and children of an O-1 or O-2 alien.
- O-1A visa
An O-1A visa is available to individuals who possess extraordinary ability in the field of sciences, arts, education, business or athletics; have received ongoing national or international recognition for their extraordinary ability; and intend to work in the U.S. temporarily in the same field.
- O-1B visa
Persons who can demonstrate a record of extraordinary achievement in film or television production may qualify for an O-1B visa to work in the U.S. temporarily in the same field.
- O-2 visa
Persons who are “essential” to an O-1 visa holder who is coming to the U.S. for an artistic or athletic performance (including a motion picture or television production) may be able to qualify for an O-2 visa to accompany the O-1 visa holder.
The main requirement regarding the employment in the U.S. is that the applicant will continue to work in the field of his extraordinary ability (or achievement). A U.S. employer is not required. If there is a U.S. employer, it files an O-1 petition on behalf of the visa applicant. If there is no U.S. employer, a U.S. agent may usually file the O-1 petition.
The term “extraordinary” is defined in three different ways depending on the field of professional activity. A visa applicant working in the arts must show a different kind of “extraordinary ability” than visa applicants working in the field of science, education, business or athletics. And a person applying for a visa to work in film and television, must show “extraordinary achievement”.
Extraordinary ability in the field of arts
To show “extraordinary ability” in the field of arts, the visa applicant must show that she enjoys “distinction”. Distinction is defined as a “high level of achievement”, which is evidenced by the artist’s possession of a level of skill and recognition “substantially above” the applicant’s peers. Showing that the artist is “renowned, leading or well-known” also helps demonstrate her “distinction”.
Extraordinary ability in the field of science, education, business or athletics
A visa applicant applying as a scientist, educator, businessperson or athlete must show “extraordinary ability”, which is defined as a level of expertise in her field reflecting the fact that she is one of the small percentage of people who are at the “very top” of their professional field.
Extraordinary achievement in motion picture and television production
A visa applicant applying to work in motion picture and/or television productions must show “extraordinary achievement”, which is defined as a very high level of accomplishment in the industry as evidenced by “a degree of skill and recognition” much higher than normal, such that the applicant can be considered an “outstanding, notable, or leading” member of the industry.
The evidence that an O-1 applicant must provide to demonstrate that she is extraordinary also varies depending on the field of professional activity. A list of all of the evidence that may be provided, organized by field, is beyond the scope of this overview. However, some of the evidence that may demonstrate extraordinariness includes:
- receipt of a major, internationally recognized award, such as the Nobel Prize, Academy Award, Emmy, Grammy or Director’s Guild Award,
- receipt of nationally or internationally recognized prizes,
- membership in associations which require a record of outstanding achievements in the relevant field,
- evidence indicating the position the applicant holds in a given association,
- participation on a panel, as a judge of the work of others in the applicant‘s field of specialization,
- published material about or by the applicant in professional or major trade publications, newspapers or other major media,
- authorship of articles in professional journals or other major media and other evidence of contributions of major significance in the field of the applicant‘s expertise (e.g. patents),
- high salary or remuneration for services.
The visa application process requires a letter of recommendation (‚consultation‘) from an appropriate U.S. labor organization or a peer group, which should evaluate the applicant‘s qualifications and how they apply to the planned employment in the United States.
Work in more than one location
If the O-1 applicant will be working in more than one location, the visa petition must include an itinerary with a list of the dates and locations where the applicant will be working.
As mentioned above, there must be a U.S. petitioner, which can be a U.S. employer or a U.S. agent representing the (foreign) employer and/or the visa applicant.
If the visa applicant has an employer in the U.S., this employer will usually act as the petitioner and will have to submit a copy of the employment agreement describing the planned U.S. employment.
Persons who are self-employed, have a foreign but no U.S. employer, or work for various U.S. employers will usually engage an agent to file the visa petition. If no agent is engaged to represent a visa applicant’s multiple U.S. employers, each employer will have to file a separate petition for the O-1 visa applicant, which can be very expensive and time consuming.
If an athlete or artist has been approved for an O-1 visa, an O-2 visa may be available for accompanying personnel who are “essential” to the activities of the O-1 visa holder. Whether or not the O-2 visa applicant is “essential” depends in part on the type of work to be performed by the O-1 visa holder and the skills of the O-2 visa applicant.
O-2 visas are not available to individuals who assist persons who have received an O-1 visa as scientists, business persons or educators.
Relatives of an O visa applicant
Spouses and unmarried children under 21 can accompany the O-1 or O-2 visa applicant to the United States. However, they are generally not granted the permission to work.
The O visa category entitles the visa holder to enter the country ten days before he is supposed to begin the employment as stated in the approved visa petition and remain in the United States up to ten days after completing his employment. However, during these ten-day periods the visa holder is not permitted to work.
IMPORTANT: The dates during which the O visa holder may work are not determined by the validity of the O visa. This is because the O visa serves only as permission to fly to the U.S. and apply for entry. Instead, the dates during which the O visa holder may work in the U.S. depend on the validity of the approved O visa petition and the validity of the Form I-94, which is issued upon entry into the U.S.
The first O-visa petition can be valid for a maximum of three years, after which extensions for a period of one year are possible.
Given the variety and particularities of the U.S. visa system, it can be difficult to determine which visas may fit your particular needs. In an initial consultation, our attorneys can help you navigate the U.S. visa system and identify visas that may be a good fit.
We would be happy to discuss your U.S. project, whether it will meet the legal requirements and what other options you may have to reside in the U.S. temporarily or permanently. Please contact us for an appointment with our expert Attorney Thomas Schwab via e-mail (firstname.lastname@example.org) or by telephone (+49 (0)69 - 76 75 77 80).
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