O-1 Visa – Application, Extension, Transfer Guide

If you are a non-immigrant worker seeking to enter the United States for a project, job or performance, you may qualify for a special O-1 visa. O-1 visa holders have several advantages over other types of work visas.

There is no annual limit to the number of O-1 visas issued, while the government only issues a certain amount of the other types of nonimmigrant work visas. Visas in the O category are generally issued fairly quickly.

There is also no maximum time that the O visa holders can stay in the country. O-1 visas are issued for the length of time the alien’s work is necessary, up to three years. You can also file an unlimited number of extensions for up to one year each. Immediate family members, the holder’s spouse, and children are also allowed to accompany you to the US, although they cannot take jobs in the country.

What is an O-1 Visa?

An O-1 nonimmigrant visa, or simply O-1 Visa, is a pass to get into the United States for individuals with extraordinary ability, acclaim or achievement. Qualifying individuals can have achieved recognition in the fields of science, art, education, athletics, or business. People who have national or international recognition in these fields may qualify for a special visa.

O-1 Visa holders often travel with family, teams or associates that also have separate visa classifications. The O nonimmigrant classification is broken into several categories including the following:

• O-1A for anyone with extraordinary abilities in science, athletics, business, or education. The A classification excludes the arts, television, and movies.
• O-1B for anyone with abilities associated with the arts including television and movie production.
• O-2 Visas are reserved for those who accompany O-1 visa holders. This could include someone who assists and athlete or actor during the practice or performance of a specific event. For O-1 assistants, qualifying O-2 holders must have an “integral part” in assisting the work that is going to be done in the US. The O-2 visa holder also must have specific skills and experience with the O-1 and his or her work. It should also be apparent that this role can’t be easily filed by a worker already in the United States.
• O-3 Visas are for the family members of the O-1 or O-2 holders. This is specifically reserved for spouses and children.

O-1 Visa Qualifications

Qualifying for an O-1 Visa means demonstrating “extraordinary ability” by providing national or international recognition or acclaim. The O-1 Visa approval rate is fairly low considering the qualifications; however, it’s worth exploring if you might be eligible. You must also be continuing in the work or performance of that field. Although the term extraordinary is generally subjective, in this case, it comes with some distinct definitions.

In science, business, athletics, and education, “extraordinary abilities” means that you have achieved a level of verifiable expertise that has put you above other people in your field. This means that you are among a small percentage at the top of your industry.

In the arts, “extraordinary ability” refers to notoriety or distinction. This means that you have achieved a level of skill that has earned you recognition in the arts community. If you are well-known, or a leader in your area of the arts, you may qualify.

If you are in movies or television, you will also need to have achieved recognition or notoriety in your field. This means your past work has been extraordinary to the point that you have been recognized by the industry. If previous work has put you at a level of recognition that is verifiable, you may qualify.

I’m each category you may be able to prove your extraordinary status through things like awards received in your industry, achieving notable success in specific endeavors or displaying unique skill.

Applying for an O-1 Visa

Applying for any visa requires attention close attention to detail; if you make a mistake or improperly represent yourself your 0-1 visa will be denied. The O-1 Visa application starts with a Form I-129, Petition for Nonimmigrant Worker and sent to the United States Citizen and Immigration Services. The form should be submitted no earlier than a year before it’s needed and no later than 45 days before your entry into the country.

Consultation Requirement

The Form I-129 must also be submitted with a consultation opinion that includes evidence from a reliable source that the alien has extraordinary abilities and it also must detail the proposed work that the O-1 Visa holder will be doing. The consultant must be a “peer group” or someone who has expertise in the relevant field.

A peer group typically means a labor organization or guild in the respective field. For instance, if you are an instrumental musician, you can use the American Guild of Musical Artists as your consultant. If there is no relevant guild or labor union available, you can use a person with specific expertise in the alien’s area of notoriety.

If the consultant uses a watermark to verify their authenticity, make sure the original version with the watermark is sent to the USCIS. Make copies and reserve them for your own records. Otherwise, sending a copy of the watermark or a version without a watermark may appear fraudulent or inauthentic.

Consultation Exceptions

There are a few exception to the consultation requirement if certain circumstances are relevant. If you can show that there is no peer group or labor organization available in your field of expertise you may not need the consultation. Instead, the decision will be made based on the evidence that you provide.

You can also be exempted from your consultation if you are in the field of the arts and you’ve already visited the United States once on an O-1 Visa. If it has been fewer than two years since your last consultation and you are looking to be readmitted into the country, the USCIS can waive the need for a second consultation requirement.

O-1 Visa Petitioner and Beneficiary Contract

The O-1 petitioner is typically an employer or colleague looking to bring an extraordinary alien into the U.S. for a job or performance. A copy of the written contract between the petitioner and the visiting alien is required as proof of the employment agreement. You can also send a written summary of an oral agreement.

If you choose to include a summary of an oral agreement rather than a written contract, be sure to include anything that can provide authenticity or clarity to the terms of the agreement. If you’ve discussed terms by email, send copies as evidence. Otherwise, record the complete terms in a summary, including what the employer offered and what was accepted by the visiting employee.

O-1 Visa Extension

When you petition for an O-1, your stay in the United States lasts as long as the time your event requires you to be there. This is referred to as the validity period. You are also given 10 days before the validity period begins and 10 days after it ends to be in the US.

The initial period of stay can be no longer than three years. However, you are allowed to extend your period of stay if the authorized employment requires more time. Uniquely, an O Visa has no limit to the number of times you are able to extend your stay. However, your O-1 visa extension application must be complete and strong in order to avoid an extension denial.

To apply for an extension you will need to send three documents to the USCIS:

• A Form I-129, Petition for Nonimmigrant Worker. This form has several purposes, one of which is extending the time an O-1 Visa holder can be in the US.
• A copy of the Form I-94, Arrival and Departure Record that the visa holder was given when entering the US (possibly on the plane). This is the form that any non-citizen has to fill out when entering the country. It has a record of your arrival date and your originally scheduled departure date.
• A statement from the employer that details why the period of stay needs to be extended. This needs to be a detailed reason why the project was delayed or needs to take longer.

If the beneficiary has a spouse or children with them, they must also file a Form I-539 Extend/Change Nonimmigrant Status. This should ideally be filled at the same time.

Transfer Your O-1 Visa Employer

If you want to change employers under your O-1 Visa, your new employer must file a Form I-129. You will also need to file this same form if there is some “material change” in your work. This is a broad term that generally refers to any major change in the nature of your work or in your work environment.

For instance, if your job title changes because of a promotion or a demotion, if you get a raise or if you move your office to a new location it will qualify as a material change.

If you are terminated for anything besides resigning by choice, your employer must provide funds to return to your last place of residence before entering the US. If the petition was filed by an agent, the agent shares responsibility with the employer to cover transportation funds.

Consult a Qualified Immigration Lawyer

In all cases, it’s best to consult a qualified immigration attorney to evaluate details pertaining to your case. VisaNation Law Group O-1 visa attorneys have years of experience handling complex O-1 visa cases. Contact us today for a consultation!