O-1B (Extraordinary Ability) Nonimmigrant Visa
The O visa category is one of our favorite visas to file because of its many benefits. Unlike the H visa, there is no quota (numerical limitation), no minimum education requirement, no minimum salary requirement, and no limit on extensions. Most important, it is the only visa that allows J-visa holders subject to the 2-year foreign residency requirement to return to the U.S. without serving the two years abroad. A foreign national whose H petition is rejected due to the cap should consider an O visa.
Under the O visa category, there are three subcategories: O-1A, O-1B, O-2, and O-3. The O-1A and O-1B visas are for foreign nationals who can prove that they have “extraordinary ability.” The O-1A visa is for foreign nationals who can prove extraordinary ability in the sciences, education, business, or athletics industries (not including the arts, motion picture or television). The O-1B visa is for foreign nationals who can prove “extraordinary ability” in the arts or “extraordinary achievement” in motion picture or television industries. In both categories, the foreign national must enter the U.S. in order to participate in an engagement, project, academic year, tour or scientific project.
O-2 visas are for support staff. The O-2 applicant does not need to prove extraordinary ability, but he/she does need to prove that he/she is an integral part of the actual performance; has critical skills and experience with the O-1 that are not of a general nature and which cannot be performed by other individuals; and has a foreign residence that he/she has no intention of abandoning. The O-3 visas are for dependents (spouses and minor children of O-1 and O-2 visa holders).
The steps to obtaining an O visa include the following:
- Obtain a written advisory opinion (“consultation”) from the appropriate peer group (either a union or management organization, or an expert in the field). Note that if the wrong union issues the consultation, the petition could be denied;
- File the nonimmigrant petition with USCIS; and
- If a change of status is selected, the beneficiary will have an I-94 attached to the approval notice. If consular processing was selected, the approval should be sent to the foreign national so he or she may consular process.
Obtaining an O visa approval without issue is imperative for O visas. In the majority of cases, O visa beneficiaries have specific tour dates in the U.S. Since tickets are sold in advance, venues can stand to lose thousands of dollars if the beneficiaries cannot enter the U.S. to perform. Cancellation would severely disappoint loyal patrons. Arts, themselves, would miss out on lucrative opportunities that would enhance their profiles. Most important, in the event that the petitioner wishes to sponsor other foreign nationals, a denial would mar the petitioner’s standing with USCIS and could threaten future petitions.
O visas also entail managing logistics. For example, we were contacted by a venue in New York who wished to sponsor a theatre group comprised of an Art Director (O-1) and seven support staff (O-1B) comprised of lighting technicians, stage manager, tour manager, sound operator, head stage technician, and technical coordinator for a particular performance. We knew that the upcoming Thanksgiving, Christmas and New Year holidays could delay the processing, so we advised our client to submit the petitions via premium processing.
We submitted our request for a consultation to the Stage Directors and Choreographers Society (SDC) (for the O-1B beneficiary). We also submitted our request for a consultation to IATSE (for the O-2 beneficiaries). Unlike other union groups that may accept a partition of the filing, SDC required an exact copy of the filing that was to be submitted to USCIS. So the petition had to be 100% finalized in order to obtain the consultation from SDC. This required the petitioner to submit all supporting documentation to our firm prior to obtaining the consultation.
IATSE accepts a submission of no more than 100 pages, which is really challenging to meet with six beneficiaries, especially when each one must prove that he/she is integral to the performance. We kept paring down the petition to meet the limit without compromising the integrity of the applications. However, unlike with SDC, while the consultation was pending with IATSE, the petitioner could continue to submit documentation to bolster our filing with USCIS.
We opted not to pay the exorbitant rush fees for the consultations. It took about one week for each labor group to issue the consultation (despite it being the Christmas holiday season). We obtained positive consultations for all seven beneficiaries without either union requesting additional evidence. We submitted our petitions to USCIS and requested premium processing. All seven cases were approved without the issuance of a Request for Evidence. From the time we submitted the request for a consultation, to the time the I-129s were approved, was about six weeks.
However, the beneficiaries still had to undergo consular processing. The beneficiaries had a very small window to interview at the consulate. Moreover, the O-1 and O-2 beneficiaries were in different countries as part of different tours. We had already prepared the DS-160 petitions and kept them ready for submission. Once we received the I-129 approvals, we submitted the DS-160 petitions for all seven beneficiaries and schedule their interview dates. The O-2 beneficiaries interviewed together and all of their visas were approved the same day. The O-1 beneficiary interviewed in a different country (and after the O-2 beneficiaries) and he also was approved for his visa the same day. The consular processing took a few days (their passports were ready for pick-up within three days of the interview).
So as you can see, there are many steps in the process and each step must be timed perfect. In this particular case, there was a lot at stake given that the performance was sold out.
The above example illustrates an O visa for performers. Under immigration law, as long as you can prove extraordinary ability in the sciences, education, business, or athletics industries (not including the arts, motion picture or television) or “extraordinary achievement” in motion picture or television industries, you qualify for an O visa. If you would like more information about an O visa, please contact us.
I Have Read that Foreign Nationals Need to Have Won an Oscar, Emmy, Nobel Prize To Prove Extraordinary Ability. Is This True?
No, it is not. It all comes down to the documentation that is submitted. In the past, we have obtained approvals by submitting various types of evidence ranging from critical reviews, to publications about the foreign national, to books authored by or about the foreign national, to awards, to prizes and awards.
How Does USCIS Interpret “Extraordinary Ability?
Extraordinary ability in the arts is interpreted as “distinction” defined as “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.”
In education, business or the sciences, extraordinary ability is interpreted as 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.”
For those in motion picture and television, the foreign nationals must prove “Extraordinary achievement” interpreted as “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.”
Are There Any Exceptions to Obtaining a Consultation?
If a consultation is not submitted with the petition, then USCIS may obtain it (this approach is not advisable since it could a substantial delay and if the consultation is negative, could result in a denial). Consultations are not required if the foreign national obtained one within the past two (2) years. Similarly, a new consultation is usually not required for obtaining an extension (with the same employer).
Can I Self-Petition or Do I Need a U.S. Sponsor?
You cannot self-petition (file the application without a sponsor). The O visa petition requires a sponsor. However, even an agent in the U.S. can qualify as a sponsor.
Can Multiple Employers File an O Visa On My Behalf?
Yes, you can work for multiple employers concurrently, but each employer must file a separate petition.
Can I Premium Process the O-1B Petition?
Yes, you can file a request for premium processing, which will give USCIS fifteen (15) calendar days to decide your case. If you get a Request for Evidence, then the clock stops until you submit a response. Once USCIS receives your response, the clock will restart.
How Long Will an O Visa Be Valid?
The initial O visa approval will be valid for three (3) years. After the three years, you can apply for unlimited extensions in one year increments.
Is There a Minimum Salary Requirement or Minimum Education Required for an O Visa?
No, unlike an H-1B visa, there is no Labor Condition Application that needs to be filed, no minimum salary requirement, and no requirement for a bachelor’s degree.
Are O Visas Subject to a Quota Like the H-1B?
No, the O Visa does not have any numerical limitations.
I Am On a J Visa and I am Subject to the 2 Year Foreign Residency Requirement. Can I Apply to Change Status to an O Visa?
No, you cannot apply to change status while in the U.S. However, you can depart the U.S. and if your I-129 petition is approved, you may consular process. You do not need to remain outside of the U.S. for two years prior to applying.
How Quickly Can I Obtain an O visa?
Much of this answer depends on how long it will take to obtain the consultation(s). Many unions will charge a “rush” fee to issue the consultation on an expedited basis. After you have the consultations, you can file the case via premium processing and ideally obtain an approval within 15 calendar days. After that, consular processing will depend on the respective consulate, but consulates issue O visas quickly, given that the beneficiaries are usually very important to their field.
What is the Difference Between an EB-1 Extraordinary Ability and an O Visa?
The EB-1 is an immigrant visa (serves as a basis for a green card); the O visa is a nonimmigrant visa (does not serve as the basis for a green card).
Can I File for an I-140 While on an O Visa?
Yes, the O visa is dual intent (like an H or L visa).
How We Can Help.
- We obtain the consultation from the appropriate peer group. We ensure that the consultation being provided is from the proper peer group. If no group exists, we will contact an expert in the field.
- We prepare all expert letters for the O-1 beneficiary as well as the O-1B letter on behalf of the O-2 beneficiaries. We cater each expert letter in accordance with the resume and bolster them with the expert’s accolades.
- We prepare the Employer Support letter that ties the entire petition together. The letter is several pages and discusses among other things, the event, the extraordinary ability of the O-1 and how the O-2 are integral to the performance.
- We prepare and file the consular processing applications. We provide all beneficiaries with copies of all relevant documents so they can be prepared to answer questions at the consulate. If necessary, we also prep the beneficiaries for their interviews.
Please give us a call to discuss your case. In-person consultations are available Monday through Friday from 8:00 am to 8:00 pm and Saturdays from 8:00 am to 5:00 pm. Please call our office at 301.529.1912 or complete the form below. Please be sure to provide a timeline of events along with details of your entire immigration history./strong>