We are very happy to announce that our office has successfully assisted another client in obtaining her O-1 visa status. The petition was approved less than 30 days after its submission and without any request for additional evidence. This article will address our experience in handling this case.
The O-1 visa is a non-immigrant employment-based visa classification for foreign nationals who can demonstrate the sustained national or international acclaim and recognition for extraordinary abilities and achievements in the field of sciences, arts, education, business, or athletics.
Our client, Ms. L, a citizen of Taiwan, is a talented young artist with exceptional abilities and numerous achievements in the field of theatrical lighting design. She recently graduated from a highly selective university in the U.S. where she received a Master’s degree of Fine Arts in Lighting Design. With her F-1 visa expiring soon, she came to our office inquiring about her options of employment-based visas.
We recommended O-1, firstly because of Ms. L’s artistic background. Ms. L has demonstrated her skills of lighting design in numerous theatre and dance performances, many of which have penetrated the market and received widespread interest and recognition in the U.S. and abroad.
Secondly, Ms. L already received job offers from many U.S. theatre companies, retaining her services on their upcoming projects as a resident lighting designer. Some projects require her immediate start of work. As we know, all H-1B visa applicants cannot work before October 1, while O-1 visa allows Ms. L an immediate start after its approval.
Thirdly, the projects are offered by different entities at various locations. Theatrical lighting design project’s short-term nature makes it impractical to find a fixed long-term employer as defined in H-1B visa requirements. This also brought up the first major issue in this case:
AGENT PERFORMING THE FUNCTION OF AN EMPLOYER
An O-1 application can be filed by an agent performing the function of an employer. If so, additional documentation must be included:
• A contractual agreement between the agent and the beneficiary which specifies the wage offered and other terms and conditions of employment. This can be a summary of the terms of the oral agreement or a written contract. A contract is not required between the beneficiary and the entities that will ultimately use the beneficiary’s services.
• A petition which requires the alien to work in more than one location must include an itinerary with the dates and locations of work. There are no exceptions to the itinerary requirement when the petition is filed by an agent performing the function of an employer.
However, USCIS does give some flexibility to how detailed the itinerary must be and does take into account industry standards when determining whether the itinerary requirement has been met. As such, the itinerary should at a minimum indicate what type of work the beneficiary will be engaged, where, and when this work will take place.
In this case, we prepared Ms. L the contractual agreement, established the type of working relationship between the agent and Ms. L, and clearly indicated how Ms. L will be paid. In totality, if the terms and conditions of employment show a level of control over the beneficiary’s work being relinquished to the agent, then you’ve fulfilled the burden to establish that the agent is performing the function of an employer. The petition we submitted evidenced the wage offered to Ms. L. O-1 visa does not contain a prevailing wage requirement and no particular wage structure is required.
Considering Ms. L’s need to work in multiple locations with multiple entities, we ask Ms. L to draft an itinerary listed all the projects she will work on covering the entire three year visa period. For itineraries, we usually ask clients to include: the nature of the events or activities or the type of work the client will be engaged, dates of each service or engagement, and the names and addresses of the establishments, venues, or locations where the services will be performed.
In cases where involve an agent performing the function of an employer, offer letters should be addressed to the agent, not the beneficiary, and attached as evidentiary support of the itinerary.
For O-1 visa, a statutorily consultation of a peer group’s or labor organization’s is required. Pursuant to 8 CFR section 214.2(o)(5)(ii), an expert opinion from a person or persons with expertise in the area of the alien’s ability may be provided to satisfy the consultation requirement.
Documentation requirements for peer consultation may vary from different peer groups. Generally, applicant’s resume or biography, 3-4 expert opinion letters, and petitioner support letter are the minimum documentation requirements.
EVIDENCE OF EXTRAORDINARY ABILITIES
If the applicant has not received, or been nominated for, any significant national or international awards or prizes in the particular field, she may provide evidence of at least (3) three of the following:
• 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 in which the beneficiary is engaged, with the testimonials clearly indicating the author’s authority, expertise and knowledge of the beneficiary’s achievements
• 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 standards do not readily apply to the applicant’s occupation in the arts, she may submit expert recommendation letters.
To show Ms. L’s extraordinary ability in theatrical lighting design industry, we provided documentation including copies of her outstanding awards from the government of Taiwan, evidence of artistic academy scholarship granted by the university to honor her artistic achievements, expert reference letters from individuals with recognition in the field of lighting design and stage performance, and newspaper articles featuring projects Ms. L’s contributions. We also selected several of Ms. L’s lighting design work products, highlighted their success, and included color photos of actual performance senses to give immigration office a direct impression of Ms. L’s abilities to tailor her exceptional skills to the needs of a variety of design projects.
The client was very excited about the quick approval and has started her work as planned. We can definitely tell the happiness from Ms. L’s face when she came to pick up the approval notice. The case was processed at California Service Center and Ms. L was granted O-1 visa for three year, starting right after the expiration of her current F-1 visa.
If you are interested in O visas or need more information regarding this, please feel free to contact our office. Our O visa attorneys will be more than happy to provide you more professional information tailored to your specific case.