The O Visa Foreigners with Extra Ordinary Ability

Coverage of O Visa Category
This classification covers foreign nationals of extraordinary ability in the sciences, arts, education, business, or athletics, as demonstrated by “sustained national or international acclaim.” Furthermore, certain foreigners accompanying those extraordinary ability foreign nationals (like support staff for athletes) are also eligible under this category. Family members can also accompany the O visa holder, but they cannot engage in employment while in the US, although they may attend school or college.

According to USCIS, the sub-categories of the O visa include:

  • O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry)
  • O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry
  • O-2: individuals who will accompany an O-1, artist or athlete, to assist in a specific event or performance. For an O-1A, the O-2’s assistance must be an “integral part” of the O-1A’s activity. For an O-1B, the O-2’s assistance must be “essential” to the completion of the O-1B’s production. The O-2 worker has critical skills and experience with the O-1 that cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O-1
  • O-3: individuals who are the spouse or children of O-1’s and O-2’s

Note that the O visa is considered a dual intent visa, which means that the person may pursue permanent residency while on an O visa without endangering his immigration status. Since the standard for qualifying under this category is very stringent, and the threshold is similar to that of the EB-1 category for permanent residency, the foreign national will most likely be able to file for his or her green card without the need for a labor certification (Form ETA 9089).

Eligibility

It is important to recognize that the foreign national seeking O status cannot apply on his or her own behalf. Typically, the US employer, or an agent of an international employer, must petition for the status with the U.S. Citizenship and Immigration Services (USCIS).

In addition, the foreign national must demonstrate extraordinary ability in the sciences, business, arts, education, athletics or the motion picture or television industries, as evidence by sustained or international acclaim. The foreign national must be coming to the US to provide temporary services for a US employer, or an agent of an international employer, in connection with the event(s) requiring his or her expertise.

In this respect, “extraordinary ability” is construed to mean that the foreign national has achieved a high level of expertise such that he or she is in the small percentage at the very top of his or her field of expertise.

Evidentiary Requirements

Proving extraordinary ability can be a challenging task sometimes. The foreign national must be able to submit evidence demonstrating receipt of a major, internationally recognized award like the Nobel Prize, or at least three (3) of the following factors:

  • 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, newspapers or other major media about the beneficiary and 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 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

Note that in the event that the aforementioned standards do not apply to your case, you may also provide comparable evidence in order to prove eligibility for this classification. Other evidence that is required includes an employment contract between you and your employer detailing the terms of service. Further, if possible, the foreign national should submit an itinerary showing the scheduled events.

Duration of Stay

The initial period of stay for the O category can be up to a period of three (3) years. Extensions of stay for up to one year are available to complete the same activities or events for which the O recipient was originally admitted. Moreover, for artists or entertainers, extensions can be granted to complete additional performance not originally specified in the O petition.

Employer Liability for Reasonable Costs of Return Transportation:

Just like with the H-1B category, if the employment of the O beneficiary is terminated before the end date for reasons other than voluntary resignation, then the employer has to pay the “reasonable costs” of return transportation for the foreign national to his or her last country of residence. Furthermore, if an agent filed the petition for the employer, then both the agent and the employer are equally responsible for the return transportation costs.