ABILITY VISAS (O-1)
Sciences, Arts, Education, Business, or Athletics
§§ 101(a)(15)(O) the
Immigration and Nationality Act of 1990 ("Act"), Pub.
L. No. 104-649, __ Stat. __,
8 U.S.C. § 1101(a)(15)(O).
8 C.F.R. § 214.2(o)(1) (1998).
(c) 1999 VIKRAM BADRINATH, P.C. All rights reserved.
The O-1 Extraordinary Visa allows a foreign national who possesses "extraordinary ability" in the sciences, arts, education, business or athletics, to be employed temporarily in the United States. "Extraordinary ability" in the field of science, education, business or athletics is defined as "a level of expertise indicating the person is one of the small percentage who have risen to the very top of the field of endeavor." "Extraordinary ability" in the filed of art means "distinction," that is "a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered ..." This requires the Petitioner to establish only that the artist is "prominent in his field of endeavor."
The O-1 visa permits a foreign national to be employed full or part-time for a specific United States employer (or "employers" if the petition is filed by an agent). The O-1 visa aholder may be employed for more than one (1) employer only if he has an approved O-1 petition for each employer.
Dependents such as spouses and children who accompany the O-1 visa holder are eligible for O-3 status. O-3 status does not authorize employment within the United States.
In order to be eligible for O-1 status, the foreign national must present evidence of sustained national or international acclaim. Supporting ("extensive") documentation may include receipt of a major internationally recognized award (such as the Nobel Prize) or evidence of at least three (3) of the following:
Current immigration law does not require the O-1 visa holder to maintain a foreign residence. In addition, approval of a labor certification or the filing of an immigrant petition cannot be the basis for denying an O-1 visa petition. An alien desiring classification as an O-1 visa holder must seek to enter for the purpose of continuing the type of work, but there is no requirement that the alien is coming to the U.S. to perform services requiring a person of O-1 caliber.
The O-1 Extraordinary Visa is issued for the period of time required to conclude the event or events, but no longer than a period of three (3) years. The beneficiary may be admitted ten (10) days before entry and remain until ten (10) days after the validity period. Extensions may be granted in increments of one (1) year.
The foreign nationals prospective employer (or established United States agent) must file a petition on U.S. INS Form I-129 no sooner than six (6) months before the prospective work or performance is to commence. The petition must be accompanied by a written advisory opinion from a peer group, a person with expertise in the applicants field, or a labor organization with expertise in the field/area, describing the applicants ability and achievements in the field of endeavor, the nature of the duties to be performed, and whether the position requires a person of extraordinary ability.
The employer must file a petition for any dependents such as spouse and children accompanying the O-1 visa holder on U.S. INS Form I-539.
For more information about O-1 Extraordinary Visas, please contact us by email, telephone, or fax or schedule an appointment to have your individual case discussed and analyzed by an attorney.