The O visa allows artists, entertainers, actors, athletes, scientists and the like to live and work in the USA for a limited period. The prerequisite for an O visa is that the applicant would like to work in the USA in the field related to their extraordinary abilities. It is not necessary to find a U.S. employer who is looking to hire the applicant on a permanent, long-term basis. If such an employer exists, they may file the petition. However, if a U.S. employer is not available, a U.S. agent must file the O-1 petition.
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 term "extraordinary" is interpreted differently depending on the field in which the applicant would like to work in the USA. A person looking to work in the field of the arts in the USA must demonstrate "extraordinary abilities" that differ from those of a person planning to work in science, education/training, business or sports. To work in the film and television industry, one must have rendered extraordinary achievements.
- Extraordinary skills in the arts
In order to demonstrate that an applicant has extraordinary abilities in the arts, the applicant must show that they have "distinction." The term "distinction" is also used to describe a "high level of achievement." Accordingly, a high degree of perfection is required. The applicant must clearly stand out from among their peers, e.g. as a leader in their field or at least widely known or for having a good reputation.
- Extraordinary skills in the fields of science, education/training, sports
In these areas, the applicant must show that he or she has extraordinary skills. This refers to a high level of expertise or competence that makes the applicant one of the best in their field. It must place them in the top few percent in their field.
- Extraordinary skills in the film and television industry
An applicant seeking to work in the film or television industry must demonstrate "extraordinary achievement." The applicant must then show that they have been extraordinarily successful and reached a high level of accomplishment. The applicant must demonstrate above average achievements and be generally regarded as "outstanding, notable or leading." As a rule, the requirements for actors are higher than for other O-1 aspirants.
- nationally or internationally recognized awards,
- membership in associations open only to persons with unique abilities,
- employment with such an association in an appropriate position,
- activity as a juror in the relevant field,
- publications about the applicant in relevant professional journals and/or national newspapers,
- publications by the applicant in recognized journals,
- significant contributions in the relevant field (e.g. patents),
- an above-average salary or compensation.
Please note that it is usually insufficient to, for example, submit a newspaper article or show proof of membership. The USCIS also generally requires evidence in connection with a criterion that the newspaper is national, how large the circulation is, among other things, in comparison to other newspapers or that, and to what extent, extraordinary skills are a prerequisite for membership and the like.
- Participation in a leadership position in productions or events that have an outstanding reputation,
- The applicant has received international or national recognition for their achievements,
- The applicant holds a leading or critical position in an organization with an outstanding reputation,
- Commercial success or critical acclaim,
- Recognition by relevant organizations, government agencies or experts,
- An above-average salary or remuneration.
Again, the point made above is that mere proof as such is, in most cases, insufficient for the petition.
As stated above, the participation of a U.S. petitioner is necessary for the process. A U.S. employer or a U.S. agent may act as such. The U.S. agent then represents the foreign employer and/or the applicant.
If the petitioner has a U.S. employer, this employer may act as petitioner. As a rule, the employment contract must then be attached to the application.
If the applicant does not have a U.S. employer but only one foreign employer, is self-employed, or would like to work for multiple U.S. employers (e.g. concert promoters for a musician, magazines for a fashion photographer), they will need the assistance of a U.S. agent or agency. In this case, the agent or agency files the petition on behalf of the applicant or employer(s). This requires various contractual documents (between the petitioner and the applicant, between the petitioner and the U.S. employers). In the case of multiple U.S. employers, each U.S. employer can also file a separate petition. However, this is not recommended due to reasons of cost and time.
It shall be noted: A person (legal or natural) residing outside the United States cannot file a petition as an agent or employer.
At the time of application, the submission of a letter of recommendation from a U.S. trade union or U.S. peer group (in the form of an advisory opinion, consultation letter or no-objection letter) providing commentary on the applicant's qualifications and the activity to be carried out in the USA is required. Unions or peer groups usually require the submission of the fully compiled petition in order to issue the letter or to be able to assess from their perspective whether the applicant has extraordinary abilities. However, the USCIS is not bound by its decision and assessment.
If the applicant intends to perform or work in more than one place, an itinerary showing the place and date of each activity must be attached to the application.
The procedure for obtaining an O visa is essentially a two-stage process. The first step is to file the petition with the USCIS. Once the petition is approved, the second step is to apply for the actual visa at a U.S. Consulate.
The USCIS may require several months to review the petition. By paying a fee currently in the amount of 2,500 USD, the processing time can, however, be reduced to 15 days. Nevertheless, in many cases, the USCIS does not respond with a final decision after the deadline but instead requests further evidence, documentation and information. Once the petition has been approved, the visa application is usually a mere formality. The applicant must complete an application form (purely electronic or online), pay the visa fee and must then make an appointment to appear in person at the U.S. Consulate. Appointments are usually available within a few days or one to two weeks. As a rule, the Consulate does not review whether the specific requirements for the O visa have been met.
If an artist or athlete holds an O-1 visa, an O-2 visa may be issued for accompanying personnel if the accompanying person is indispensable to the O-1 visa holder's venture. Whether someone is indispensable depends on the visa holder's occupation, the O-2 applicant's skills and/or knowledge and cooperation prior to submitting the application.
If the O-1 visa holder works in the fields of science, business, education/training, an O-2 visa cannot be issued.
Spouses and unmarried children under the age of 21 may accompany persons traveling to the United States on an O-1 or O-2 visa. However, they are not then allowed to work. They will receive a U.S. visa of the category O-3.
The visa entitles the holder to enter the country ten days before the start of the activity or the date indicated on the application (more precisely: the approval notice) up to a U.S. stay ten days beyond the date indicated on the application. However, work is not allowed during these ten days.
IMPORTANT: The visa does not determine how long the visa holder is allowed to work in the USA . The visa itself is often issued for a full five years. The visa is merely permission to travel to the U.S. and ask for entry. How long you are allowed to work is determined by the petition (i.e. approval notice) and the I-94 form. The petition must therefore be presented together with the visa at the time of entry. The (electronic) form will be issued by a border official upon entry.
While the O visa is usually suitable for individuals (possibly together with accompanying support personnel) who would like to perform in the USA or work in a company, the P visa is more suitable for groups of artists or athletes (sports team, string quartet, etc.) who would like to perform in the USA. Additionally, for athletes who would like to compete in the USA and receive not only prize money but also other compensation from a U.S. source, the P visa is the more appropriate visa category.
It is not always easy to decide which visa is most likely to help you achieve your goals. Thus, this requires close consideration of your specific objectives. In an initial consultation with our lawyers, we will gladly help clarify which visa is the ideal solution for you.
Please contact our U.S. visa expert, attorney Thomas Schwab, at any time if you would like to make an appointment for a consultation - either via e-mail (email@example.com) or by telephone (+49 69 76 75 77 80).
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