VISA SPOTLIGHT: O VISAS FOR INDIVIDUALS OF EXTRAORDINARY ABILITY OR ACHIEVEMENT

The O-1 non-immigrant visa classification is designed for highly talented or recognized individuals and is often an attractive alternative to other non-immigrant categories such as the E, L, H, or J classifications. The category is open to artists, athletes, scientists, educators, entertainers and business people. A professional degree is not necessary and there is no prevailing wage requirement. O-2 visas are available for certain aliens accompanying O-1 aliens in the arts or athletics. The O-3 visa is for dependents of O-1 and O-2 visa holders.

O-1 applicants in the arts, athletics, education or the sciences must show extraordinary ability “demonstrated by sustained national or international acclaim.” The definition of “extraordinary” differs depending on whether one is an artist or entertainer as whether one is one of the other fields. And within the entertainment field, there are special criteria for people affiliated with motion pictures or television production.

Persons coming to the US to work in the sciences, education, business, or athletics must demonstrate “extraordinary ability” by showing they have a “level of expertise indicating that the person is one of the small percentage who have risen to the very top of the field of endeavor.” The petitioner for the beneficiary must show the receipt of a “major internationally-recognized award, such as the Nobel Prize” or documentation of at least three of the following:

1. Receipt of nationally or internationally recognized prizes/awards for excellence in the field;
2. Membership in associations in the field that require outstanding achievement of their members, as judged by recognized or international experts;
3. Published material in professional or major trade publications or major media about the alien;
4. Participation on a panel or as a judge of the work of others in the same or an allied field of specialization;
5. Original scientific, scholarly, or business-related contributions of major significance;
6. Authorship of scholarly articles in professional journals or other major media;
7. Current or previous employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation;
8. Past or proffered high salary or other remuneration for services, evidenced by contracts or other reliable evidence.
9. Other “comparable evidence” of eligibility.

 

Persons coming to work in the arts or entertainment, with the exception of those affiliated with motion pictures or television production, must show “extraordinary ability” by demonstrating they have “distinction” in their field. “Distinction,” in turn, means a “high level of achievement in the field of 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.” INS regulations define “arts” to include “any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts and performing arts.” The INS has stated that “behind-the-scenes” occupations such as set designers, choreographers, music coaches and others could qualify in the O-1 category. The regulation should be read broadly to include a number of professions.

To demonstrate “distinction” the petitioner must demonstrate that the beneficiary has been nominated for or has received a significant national or international prize such as an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award or that the beneficiary meets at least three of the following:

1. Has performed services as a lead or starring participant in productions or events with distinguished reputations as shown by critical reviews, ads, publicity releases, publications, contract or endorsements;
2. National or international recognition for achievements through critical reviews, other published materials by or about the beneficiary in major trade papers, trade journals, magazines, and so forth.
3. Has performed in a lead, starring or critical role for organizations and establishments that have a distinguished reputation evidenced by media articles, testimonials, and similar write-ups.
4. Has a record of major commercial or critically acclaimed success;
5. Has achieved significant recognition from organizations, critics, government agencies and recognized experts.
6. Has commanded or will command a high salary or other remuneration in comparison to others in the field;
7. Other “comparable evidence” to demonstrate “distinction.”

 

The rules for people in the motion picture and television production industries vary somewhat from the normal rules for artists and entertainers. First, the definition of “extraordinary” is different. For these individuals, “extraordinary achievement” is defined as “a very high level of accomplishment in the motion picture or television industry evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that the person is recognized as outstanding, leading, or well-known in the motion picture or television field.” Despite the different definition of “extraordinary,” INS regulations use basically the same list of evidentiary documents here as is the case for the regular artist and entertainer category. The only major difference is the fact that there is no category for “comparable evidence.” The INS says that the real difference between the two categories is that it will apply a higher standard to artists and entertainers in movies and television.

Aside from meeting the evidence tests described above, a key requirement for O-1 applicants is consulting with an appropriate peer group, labor and/or management organization regarding the type of work to be performed and the qualifications of the proposed beneficiary. The “peer group” (basically, an organization of person in the same field as the beneficiary (and this group is normally a union)) must normally provide a written opinion to the INS, but the opinion is not binding. The INS Operations Instructions provides a list of acceptable peer group organizations, but this list is not exclusive .

Where an application does not include an advisory opinion or a case needs to be handled on an expedited basis, the INS will attempt to contact the peer group directly. The peer group will have one day to respond of the INS will process the application without the opinion. If the organization responds within one day, it then has another five working days to provide a written opinion. If an application is received with an advisory opinion from a peer group that is not a union and a union exists in the field, the INS will normally forward a copy of the application to the appropriate union within five days of receipt. The union then has fifteen days to respond with a written opinion. The INS will then adjudicate the application within fourteen days. In those cases where the peer group opinion is the basis of denial, the petitioner is given a chance to respond in a written rebuttal.

There are circumstances where there are no appropriate peer groups in a given field. In those cases, the INS will normally make a decision without a peer group consultation. Also, the INS will not require a new consultation if the beneficiary is reentering the US in the O-1 category within two years of a previous peer group consultation.

In motion picture and television production cases, the petitioner must consult with both a union and a management organization in the appropriate area. The opinion is expected to discuss the beneficiary’s achievements and whether the position sought would normally require a person with extraordinary ability. The Alliance of Motion Picture and TV Producers normally provides the management consultation in all television and movie cases.

Application for the O-1 visa is made using the I-129 Non-Immigrant Visa Application and the O Supplement. O-2 applications are submitted with a separate application. The application is filed with all of the required evidence to the regional INS service center having jurisdiction over the place where the beneficiary will be working. There are additional rules for aliens working in more than one location or who are working for more than one employer. Acceptable O-1 petitioners include US firms, foreign employers and “established” American agents. Agents are required to provide detailed information regarding the beneficiary’s itinerary and contract. O-1 applicants cannot petition for themselves. O-1 beneficiaries are not limited by any statutory limits on their stay in the US except that they are not permitted to be in the US longer than the period of the “event” described in the application. The INS will also only grant up to three years stay initially with an unlimited number of one year extensions. Beneficiaries can enter the US up to ten days in advance of the approved activity and stay for ten days afterwards, but may not work during either ten day period.

Finally, it is important to note that the requirements for the O-1 non-immigrant visa are very similar to the rules for the EB-1 permanent residency category for extraordinary ability aliens. One key difference is the fact that a peer group consultation is not required in the permanent category. Another is that in the permanent category, the alien can self-petition. Obviously, the main reason why people use the O-1 category instead of the permanent residency category is because the O-1 visa can be obtained much more quickly than the EB-1.

Note: The INS Operations Instructions list of Peer Group Organizations is being added this week to the SSHC Documents Collection at our firm’s web site.

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