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O-1 – Hojinpark Lawyer

O-1

Sciences, arts, education, business or athletics
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The O-1 visa classification is for the individual who possesses extraordinary ability in the sciences, arts, education, business or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.

The O-1 includes:

  • O-1(A) which is for individuals with an extraordinary ability in the sciences, education, business or athletics, and
  • O-1(B) which is for individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or TV industry.

In O-1(A), “extraordinary ability” means a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field, and

In O-1(B), “extraordinary ability” in arts means distinction which is interpreted as a high level of achievement in the field as evidenced by a degree of skills 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.

To qualify for an O-1 visa in the motion picture or TV industry, the foreign individual must demonstrate extraordinary achievement evidenced by 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 field.

Evidentiary Criteria for O-1(A):

To qualify for O-1(A), the beneficiary must prove either his/her receipt of a major, internationally-recognized award, such as a Nobel Prize, or meeting at least three of the following eight criteria:

  • 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;
  • 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; and
  • Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.

If the above does not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence in order to establish the beneficiary’s eligibility.

Evidentiary Criteria for O-1(B):

To qualify for O-1(B), the beneficiary must prove either his/her receipt of a major, internationally-recognized award, such as a Director’s Guild Award, Academy Award, Emmy or Grammy, or meeting at least three of the following six criteria:

  • Performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements;
  • Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications;
  • 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;
  • A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers or other publications;
  • Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field; and
  • A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence.

If the above does not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence in order to establish the beneficiary’s eligibility.

Petitioner & Employer(s):

The validity period of an O-1 visa can be up to three years, and it is determined by the length of the beneficiary’s plan to work in his or her field within the U.S.

The beneficiary may have a plan to work with multiple employers for his or her O-1 period.

Petitioner:

Basically, the employer may file an O-1 visa petition to the USCIS.

The O-1 visa law allows to use a U.S. agent to file an O-1 visa petitioner in cases that:

  • The beneficiary has multiple employers; OR
  • The beneficiary belongs to a “traditionally self-employed occupation”; OR
  • The beneficiary works for a foreign employer.

In case of Agent filing an O-1 visa petition:

  1. A U.S. agent may be: (i) the actual employer of the beneficiary, (ii) the representative of both the employer and the beneficiary; or (iii) a person or entity authorized by the employer to act for, or in place of, the employer as its agent.
  2. A copy of a written contract between the Agent and the beneficiary (or a summary of the oral agreement) should be submitted with the visa petition.
  3. An agent for multiple employers must:
  • Establish that it is authorized to act as an agent for employers
  • Submit a complete itinerary of the event(s)that the beneficiary will be engaged in during the O-1 period (the itinerary must specify the dates of each event or engagement, the names and addresses of the actual employers, and the names and addresses of the establishments, venues or locations where the beneficiary will perform)
  • Submit contracts between the actual employers and the beneficiary, which contain an explanation of the terms and conditions of the employment. The contractual agreement should establish the type of working relationship between each employer and the beneficiary and should clearly lay out how the beneficiary will be paid.

Consultation Requirement:

A written advisory opinion from a peer group or a person with expertise in the beneficiary’s field of specialty is required to submit with an O-1 visa petition.

A motion picture or TV O-1 petition must include written advisory opinions from appropriate labor union and from a management organization.

All other O-1 visa petitions must contain an advisory opinion letter from an appropriate union or a beneficiary’s U.S. peer group.

If the petitioner can demonstrate an appropriate peer group does not exist, then the consultation requirement can be waived.  Also, the consultation requirement may be waived for an alien with extraordinary ability in the field of arts if he or she seeks readmission to perform similar services within two years of the date of a previous consultation.

Period of Stay:

The period of stay for an O-1 is up to three years.

The extension of stay can be approved in one-year increment for the same event. An O-1 extension petition filed by a new employer or for a new position by the same employer may be approved for three years.

Change of Employer:

A new employer must file an O-1 visa petition, as requesting the extension of the beneficiary’s O-1 status for up to three years.

If the petition was filed by a U.S. agent, an amended petition can be filed by the agent to add the beneficiary’s employment with the new employer. This amended petition may include the request for an extension of stay, as well.

Immediate family member(s):

The spouse and unmarried minor child(ren) may accompany or follow to join the O-1 beneficiary, as an O-3.

DISCLAIMER

Neither your receipt of information from this website nor your use of this website to contact Ho Jin Park, Esq. creates an attorney-client relationship between you and Ho Jin Park, Esq. The materials, included in this website, are for informational purposes only and are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. You should contact an attorney for advice on specific legal problems. Many of the practice summaries on this website describe results obtained in matters handled for Ho Jin Park, Esq.'s clients. These descriptions are meant only to provide information about the activities and experience of Ho Jin Park, Esq., as not intending as a guarantee that the same or similar results can be obtained in every matter undertaken by Ho Jin Park, Esq.