O-1 Visa Attorney: Top 10 issues to consider in O-1 visa Petitions

Our Blog readers and Facebook fans often inquire about other temporary work visa options other than the H-1B Visa. This article was prepared by Attorney Yingfei Zhou from our office.

For individuals who possesses extraordinary ability in the field of 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, we will recommend the O-1 visa.

A job offer from a U.S. employer is a basic requirement for the O-1 visa. The O-1 visa is filed by the employer, along with the evidence of the individual’s extraordinary ability. Different from the H-1B visa, there is no annual limit on the number of people, who can receive O-1 visas, there is no limit on the time we can file the application, and you can work for multiple employers at the same time.

To help you better prepare an O-1 visa petition, we are now sharing our experience and provide you the following 10 most important points that need to be addressed when preparing your case:

I. Make sure you apply under the correct category.

For individuals with an extraordinary ability:
• O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry).

• O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry.

For accompanies of the individuals with an extraordinary ability:
• O-2: individuals who will accompany an O-1, artist or athlete, to assist in a specific event or performance.

 For an O-1A, the O-2’s assistance must be an “integral part” of the O-1A’s activity.

 For an O-1B, the O-2’s assistance must be “essential” to the completion of the O-1B’s production.

 The O-2 worker has critical skills and experience with the O-1 that cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O-1
• O-3: individuals who are the spouse or children of O-1’s and O-2’s
To qualify for an O-1 visa, the beneficiary must demonstrate the extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to contribute work in the area of extraordinary ability.

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 achievements in the sciences, education, business, or athletics. It requires the employer file a petition for a nonimmigrant worker, along with evidence of the individual’s extraordinary ability. The extraordinary ability in the field of sciences, education, business, or athletics means a level of expertise indicating that the person is one of the small percentages who have arisen to the very top of the field of endeavor.

II. Evidential requirements to prove extraordinary ability in science, education, business, or athletics

To meet the O-1A visa standards, the applicant must be able to show extraordinary ability and receipt of sustained national or international acclaim for it. This can be demonstrated if the person has gotten a major internationally recognized award, such as an Olympic medal or a Pulitzer Prize, or has accomplished at least three of the following:
• received a nationally recognized prize or award for excellence;
• attained membership in associations that require outstanding achievements of their members in a particular field of expertise, as judged by recognized national or international experts;
• been the subject of published material in professional or major trade publications or major media (regarding you and your work);
• participated, on a panel or individually, as a judge of the work of others in your field;
• made an original scientific, scholarly, or business-related contribution of major significance to the field;
• authored scholarly articles in professional journals or major media;
• been previously employed in a critical or essential capacity for an organization with a distinguished reputation; and/or
• command or have commanded a high salary or other outstanding remuneration for your services.

If the above criteria do not readily apply to the applicant’s occupation, the company filing the immigration petition may submit comparable evidence to show how “extraordinary” the person really is, such as expert support letters.

The company should take care to explain exactly why the above criteria do not apply to the applicant.

For O-1B applicant, he or she must be recognized as prominent in the field of endeavor. To demonstrate such recognition, the applicant will need to supply documents showing that he or she has been nominated for or have received significant national or international awards or prizes in the particular field, such as an Oscar, Emmy, Grammy, or Director’s Guild Award. Alternately, the employer filing the petition can submit at least three of the following forms of documentation:
• evidence that the applicant has performed, and will perform, services as a lead or starring participant in productions or events that have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publication contracts, or endorsements;
• evidence that the applicant has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the person in major newspapers, trade journals, magazines, or other publications;
• evidence that the applicant has 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;
• evidence that the applicant has a record of major commercial or critically acclaimed successes (as evidenced by title, rating, standing in the field, box office receipts, motion pictures, or television ratings) and other occupational achievements reported in trade journals, major newspapers, or other publications;
• evidence that the applicant has received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field. Such testimonials must be in a form that clearly indicates the author’s authority, expertise, and knowledge of the applicant’s achievements; and/or
• evidence that the applicant has either commanded a high salary or will command a high salary or other substantial remuneration for services, as compared to others in the field, as shown by contracts or other reliable evidence.

If the above criteria do not lend themselves to the person’s occupation and situation, the petitioning employer may submit alternative but comparable evidence in order to establish eligibility. Such alternative evidence may include expert support letters. 7-8 expert support letters are recommended.

In addition, USCIS has defined arts broadly, which include: any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts. Aliens engaged in the field of arts include not only the principal creators and performers but other essential persons such as, but not limited to, directors, set designers, lighting designers, sound designers, choreographers, choreologists, conductors, orchestrators, coaches, arrangers, musical supervisors, costume designers, makeup artists, flight masters, stage technicians, and animal trainers. See 8 C.F.R. § 214.2(o)(3)(ii).

III. Peer Consultation is mandatory.

In O-1 application, the individual will need to obtain a written advisory opinion from a peer group (including labor organizations) or a person designated by the group with expertise in the beneficiary’s area of ability. If the O-1 petition is for an individual with extraordinary achievement in motion picture or television, the consultation must come from an appropriate labor union and a management organization with expertise in the beneficiary’s area of ability.

There are some exceptions as to the consultation requirement. If the petitioner can demonstrate that an appropriate peer group, including a labor organization, does not exist, the decision will be based on the evidence on record. A consultation may be waived for an alien with extraordinary ability in the field or arts if the alien seeks readmission to perform similar services within 2 years of the date of a previous consultation with the petition.

IV. A contract between the petitioner and beneficiary is required.

A copy of any written contract between the petitioner and the beneficiary or a summary of the terms of the oral agreement under which the beneficiary will be employed is also required.

USCIS accepts an oral agreement, as evidenced by the summation of the elements of the oral agreement. Such evidence may include but is not limited to: emails between the contractual parties and a written summary of the terms of the agreement, which contains 1) what is offered by the employer and 2) what was accepted by the employee. The summary does not have to be signed by both parties to establish the oral agreement. However, it must document the terms of the employment offered and that the beneficiary has agreed to the offer.

V. Itinerary is required if the beneficiary will work in multiple locations.

A petition which requires the beneficiary 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.

The petitioner must establish that there are events or activities in the beneficiary’s field of extraordinary ability for the validity period requested, e.g. an itinerary for a tour or a series of events.

VI. Agents being the actual employers.

A U.S. Agent may be the actual employer of the beneficiary, the representative of both the employer and the beneficiary, or a person or entity authorized by the employer to act for, or in place of, the employer as its agent.

i. Agent for Multiple Employers

Please note that a petitioner who will be filing as an agent for multiple employers must establish that it is duly authorized to act as an agent for the other employers. Additionally, agents filing I-129 petitions for multiple employers must include with the petition:
• Supporting documentation including a complete itinerary;
• Contracts between the actual employers and the beneficiary; and
• An explanation of the terms and conditions of the employment with required documentation.

Once the visa petition is approved by USCIS, the beneficiary can apply at a U.S. embassy or consulate for the visa. Department of State (DOS) establishes visa application processing and issuance fees.

ii. Agent Performing the Function of an Employer
An I-129 filed by an agent performing the function of an employer must include the 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.

Please note that USCIS relies on the contractual agreement that must be provided with the petition to determine whether the agent is functioning as the employer of the beneficiary. The contractual agreement should establish the type of working relationship between the agent and beneficiary and should clearly lay out how the beneficiary 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 the agent may establish that it is performing the function of an employer. This determination will be on a case by case basis and will be based on the contractual agreement, whether written or oral.

The petition must be submitted with evidence regarding the wage offered. However, the regulations do not contain a prevailing wage requirement. Furthermore, no particular wage structure is required. A detailed description of the wage offered or fee structure and that the wage offered/ fee structure was agreed upon may satisfy this requirement.

iii. Agent for Foreign Employers
Agents filing I-129 petitions for foreign employers must submit the minimum general documentary evidence as required for all O-1 petitions which include:
• Copies of any written contracts between the foreign employer and the beneficiary or a summary of the terms of the oral agreement under which the beneficiary will be employed;
• An explanation of the nature of the events or activities, the beginning and ending dates for the events or activities, and a copy of any itinerary for the events or activities; and
• A written advisory opinion from the appropriate consulting entity or entities.

The regulations do not require any additional documentary requirements for an agent filing on behalf of a foreign employer; however, it is the foreign employer who is responsible for complying with all applicable employer sanctions provisions.

VII. Changing Employers

If you are an O-1 nonimmigrant in the United States and you want to change employers, then your new employer must file a Form I-129 with the USCIS office listed on the form instructions.

If the petition was filed by an agent, an amended petition must be filed with evidence relating to the new employer and a request for an extension of stay.

VIII. Material Change in Terms and Conditions of Employment

If there has been any material change in the terms and conditions of the beneficiary’s employment or the beneficiary’s eligibility, the petitioner must file an amended petition on Form I-129 with the Service Center where the original petition was filed.

There are special rule for athletes. When professional athletes with O-1 nonimmigrant status are traded from one team to another, employment authorization will continue with the new team for 30 days during which time the new employer must file a new Form I-129. The simple act of filing the Form I-129, within this 30-day period, extends the employment authorization at least until the petition is adjudicated. If the new employer does not file a new Form I-129 within 30 days of the trade, the athlete loses his or her employment authorization. The athlete also loses his or her employment authorization if the new Form I-129 is denied.

VIIII. Return Transportation

If the employment of an O nonimmigrant beneficiary is terminated for reasons other than voluntary resignation, the employer must pay for the reasonable cost of your return transportation to the O nonimmigrant’s last place of residence before entering into the United States. If an agent filed the petition for the employer, the agent and the employer are equally responsible for paying these costs.

X. O-2 visa application requirements

In order to qualify as an O-2 candidate, you must meet the following criteria:
• Have a vital role in the central performance;
• Have essential skills and a wealth of experience that is above average standards;
• Have a committed professional association with the 01 visa holder;
• Must prove the possession of a foreign residence, which will not be abandoned. A specific date of exit should also be expressed; and
• Must gain a labor consultation from the Labor Organization stating that there are no American individuals who can assist, and the O-2 beneficiary is essential for the fulfillment of the O-1 visa holder’s work.

The initial stay is 3 years. The extension of stay under O-2 visa is up to 1 year. An O-2 visa is valid till the time the O-1 visa holder accomplishes his/her task.

If you have more question regarding O visa application. Please feel free to contact our office at any time.