O-1 Visa to the U.S. for Employment: Who Qualifies?

Short-term employment visas are available to certain foreign-born people doing specialized work in the U.S., including the O-1 visa for outstanding workers in the sciences, arts, athletics, education, or business. (See the Immigration and Nationality Act at I.N.A. § 101(a) (15)(O); 8 U.S.C. § 1101(a)(15)(O), or the Code of Federal Regulations at 8 C.F.R. § 214.2(o)(1)(ii)(A)(1).)

A job offer from a U.S. employer is a basic requirement for the O-1 visa. There is no annual limit on the number of people who can receive O-1 visas.

Literally speaking, a "visa" is a U.S. entry document. Once in the U.S., you will be in "O-1 status." Or, if you are already in the U.S. legally, it's possible to apply for O-1 status without first getting an entry visa. But in that case, if you ever travel out of the U.S. while in O-1 status, you'll need to make a stop at a U.S. consulate to obtain an actual O-1 visa for reentry.

Key Features of the O-1 Visa or Status

Some of the advantages and disadvantages of the O-1 visa or status include:

• O-1 visa holders can work legally in the U.S. for the O-1 visa sponsor. If, however, the worker wants to change jobs, a new visa is necessary.
• O-1 visas can be issued fairly quickly.
• O-1 visas will be granted for the length of time necessary for a particular event, up to a maximum of three years, with unlimited extensions in one-year increments.
• The O-1 visa holder can travel in and out of the U.S. or stay continuously for as long as the visa stamp and status are valid.
• Family of the O-1 visa holder may apply for the O-3 visa, which allows family to travel in and out of the U.S. or stay continuously for as long as the visa stamp and status are valid. Family members may apply for the O-3 visa if they are outside of the U.S. by completing the DS-160 Form, paying the fees, and completing a visa interview, or, if they are already in the U.S., by submitting Form I-539, Application to Change Nonimmigrant Status.
• A spouse and unmarried children under age 21 may accompany the O-1 visa holder, but they may not accept employment in the United States.

Qualification Criteria for an O-1 Visa or Status

O-1 visas are available to people who have not only a job offer in the U.S., but have proven extraordinary ability in the sciences, arts, education, business, or athletics. What does it mean to be considered a person of extraordinary ability? See below for the details.

Broadly speaking, the person must have received national or international acclaim in a particular field, or, if working in motion pictures or television productions, have a demonstrated record of extraordinary achievement.

O-1 visas can be given only on the basis of a person's individual qualifications. Being a member of a group or team will not, by itself, qualify someone for an O-1 visa.

In addition, the person must be coming to the U.S. work or perform at an event or a series of events in the area of extraordinary ability. The term "event" is interpreted liberally outside the fields of athletics and arts and can include, for example, an ongoing research project for a private company.

Extraordinary Ability in Science, Education, Business, or Athletics (Category O-1A)

To meet the O-1 visa standards, the applicant must be able to show extraordinary ability and receipt of sustained national or international acclaim for it. This can be demonstrated if the person has gotten a major internationally recognized award, such as an Olympic medal or a Pulitzer Prize, or has accomplished at least three of the following:

• received a nationally recognized prize or award for excellence
• attained membership in associations that require outstanding achievements of their members in a particular field of expertise, as judged by recognized national or international experts
• been the subject of published material in professional or major trade publications or major media (regarding you and your work)
• participated, on a panel or individually, as a judge of the work of others in your field
• made an original scientific, scholarly, or business-related contribution of major significance to the field
• authored scholarly articles in professional journals or major media
• been previously employed in a critical or essential capacity for an organization with a distinguished reputation, or
• command or have commanded a high salary or other outstanding remuneration for your services.

If the above criteria do not readily apply to the applicant's occupation, the company filing the immigration petition may submit comparable evidence to show how "extraordinary" the person really is. The company should take care to explain exactly why the above criteria do not apply to the applicant.

Extraordinary Ability in the Arts (Category O-1B)

When applying as an O-1 alien of extraordinary ability in the arts, applicants should start by making sure their work fits the immigration law's definition of art. The U.S. Citizenship and Immigration Services (USCIS) regulations define art broadly, to include:

. . . any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts. Aliens engaged in the field of arts include not only the principal creators and performers but other essential persons such as, but not limited to, directors, set designers, lighting designers, sound designers, choreographers, choreologists, conductors, orchestrators, coaches, arrangers, musical supervisors, costume designers, makeup artists, flight masters, stage technicians, and animal trainers.

(See 8 C.F.R. § 214.2(o)(3)(ii).)

Applicants must also be coming to the U.S. to perform in the area of extraordinary ability. They must be recognized as prominent in the field of endeavor. To demonstrate such recognition, applicants will need to supply documents showing that they have been nominated for or have received significant national or international awards or prizes in the particular field, such as an Oscar, Emmy, Grammy, or Director's Guild Award. Alternately, employers filing a petition can submit at least three of the following forms of documentation:

• evidence that the applicant has performed, and will perform, services as a lead or starring participant in productions or events that have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publication contracts, or endorsements
• evidence that the applicant has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the person in major newspapers, trade journals, magazines, or other publications
• evidence that the applicant has 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
• evidence that the applicant has a record of major commercial or critically acclaimed successes (as evidenced by title, rating, standing in the field, box office receipts, motion pictures, or television ratings) and other occupational achievements reported in trade journals, major newspapers, or other publications
• evidence that the applicant has received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field. Such testimonials must be in a form that clearly indicates the author's authority, expertise, and knowledge of the applicant's achievements, and
• evidence that the applicant has either commanded a high salary or will command a high salary or other substantial remuneration for services, as compared to others in the field, as shown by contracts or other reliable evidence.

If the above criteria do not lend themselves to the person's occupation and situation, the petitioning employer may submit alternative but comparable evidence in order to establish eligibility.

You're Interested in an O-1 Visa: What's Next?

For details about what to expect and do during the O visa application process, see U.S. Immigration Made Easy, by Ilona Bray (Nolo).

You might also wish to consult an immigration attorney for a full personal analysis of your eligibility and for help with the application process. Nolo's Lawyer Directory can help you find an expert attorney who fits your needs. Look in particular for an attorney with expertise in business immigration law (even immigration law has many subspecialties within it).