O – Extraordinary Ability Visa

O visas are nonimmigrant visas for foreign nationals with “extraordinary ability,” as
demonstrated by sustained national or international acclaim in the sciences, arts, education, 
business, or athletics. O visas are also issued to foreign nationals who have an extensively documented record of extraordinary achievement in motion pictures or television. The foreign national must seek entry to work in his/her area of expertise and the USCIS must determine
that the foreign national’s entry will result in substantial prospective benefit to the US. The
criteria for O visa status are identical to the criteria for a first-preference extraordinary ability immigrant visa petition. However, an individual may “self-petition” for a first preference
extraordinary ability visa petition, while an employer must sponsor an individual for
O visa status.

To demonstrate extraordinary ability in the sciences, business, education, or athletics,
the foreign national must prove either the receipt of a major, internationally recognized
award, such as the Nobel Prize, or evidence of three of the following:

  • Receipt of nationally or internationally recognized prizes or awards for excellence;
  • Membership in associations that require outstanding achievements of their members,
as judged by recognized national or international experts;
  • Discussion about the alien’s work appearing in professional or major trade publications
or other major media;
  • Participation, either individually or on a panel, as a judge of the work of others in the
same or an allied field;
  • Original scientific scholarly, or business related contributions of major significance;
  • Authorship of scholarly articles in professional or major trade publications or other
major media;
  • Employment in a critical or essential role for organizations or establishments that
have a distinguished reputation;
  • Command of a high salary or other significantly high remuneration for services,
evidenced by contracts or other reliable evidence.

Lastly, there is one catch-all requirement which allows for comparable evidence to show extraordinary ability if these standards do not readily apply to the occupation. There are
also separate criteria for extraordinary ability in the arts and extraordinary achievement
in the motion picture or television industry. Foreign nationals seeking O status also must
obtain an advisory opinion from an appropriate peer group, if available or a person with
expertise in the area of the foreign national’s ability. If there is no appropriate peer group,
such as a labor organization, the individual can submit affidavits or statements from individuals employed in the field. A consulting organization may also submit a letter of no objection
in lieu of the above consultation if it has no objection to the approval of the petition.

There are many advantages to O visa status. Unlike H-1B visas, there is no associated labor condition application (LCA), so employers do not need to attest to paying the prevailing wage
for the position. Further, there is no numerical limitation on the number of O visas issued per
year. O visas may be renewed indefinitely, with no limitation on the number of renewals, as
long as the foreign national can continue to present evidence of a foreign residence that he
or she has no intention of abandoning. Also, once an individual establishes that he or she is
eligible for O visa status, it is often easy to establish eligibility for an extraordinary ability first preference visa petition. Lastly, individuals on J visas who are subject to a two-year return requirement may change to O status without first satisfying the two-year return requirement. However, the individual still must satisfy this requirement before adjusting status, or
changing to H, L or K status.

Individuals seeking entry solely to accompany and assist in an artistic or athletic performance
of an admitted O-1 visa holder may be admitted in O-2 status provided they can establish
non-immigrant intent and have skills and experience with the O-1 employee which are not of
a general nature and which are no possessed by a US worker. Additional requirements apply
to O-2 foreign nationals involved in motion picture and television productions.

Spouses and dependents are eligible for O-3 visa status but are not authorized to accept employment in
the US.  O visas are filed with the regional USCIS service center with jurisdiction over the employment
and are filed with Form I-129. Additionally, if the employer wishes for the USCIS to approve
the application within 15 days, it can file a Form I-907 request for premium processing and pay
an additional $1,000 filing fee. The USCIS issues O visas for the appropriate period of time necessary to accomplish the event or activity, not to exceed three years, and issues extensions
in one-year increments.

Copyright © 2009 Law Offices of Melissa Harms.  All rights reserved.

The above discussion is provided for informational purposes only and is not intended as legal advice nor does it create an attorney-client relationship. Individuals should visit a licensed attorney to evaluate the legal circumstances surrounding their situation and to receive appropriate legal advice.