EXTRAORDINARY ABILITY AND THE O1A VISA

O-1A status is available to persons of extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry). It is the most commonly used visa for those who have gained significant achievements in their respective fields. Examples of those who are eligible for this visa include, but are not limited to: CEOs who have achieved dramatic growth, professors with groundbreaking publications, researchers with patents, or athletes with significant press.

To qualify for an O-1 visa, the beneficiary must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability.

“Extraordinary ability” in the fields of science, education, business or athletics means a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor. An “extraordinary ability” O-1 visa applicant does not need to prove to the Department of Homeland Security (DHS) or to a U.S. Consulate that he or she is not an intending immigrant and that he or she maintains a residence abroad. The petition is to be approved for the duration of the event, in which the alien will participate, for a maximum of three years. One-year extensions are permitted thereafter with no maximum cumulative duration.

For O-1B purposes, the definition of arts, and thus artist, is broad.  Any field of creative activity or endeavor qualifies, such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts. Below are some additional examples

• Art and Entertainment Industry Professionals: Creative Directors, Architects, Publicists, Writers, Designers, Developers, Sound Engineers, Producers, Directors, Actors, Actresses, Singers, Animators, 3d Artists, Projection Mapping Artists, Theatre Industry Professionals, Coaches, etc.
• Fine Arts Professionals: Painters, Commercial Artists, Special Effects Artist, Mural Artist, Tattoo Artist, Photographers, Writers, Poets, Authors, Art Directors, Chefs, Culinary Industry Professionals, etc.
• Beauty and Fashion Professionals: Makeup Artist, Groomer, Hairstylist, Fashion Designer, Clothing Designer, Costume Designer Textile Specialists, Eyelash Artists, Stylists, Consultants, etc.
• Music Industry Professionals: Musicians, Sound Engineers, Disc Jockeys, Singers, Choreographers, Maestros, Teachers, Producers, Directors, Songwriters, etc.

Once an individual is able to establish that they have extraordinary ability in the sciences, education, business, or athletics, they must have United States Employer, a United States Agent, or a foreign employer through a United States Agent file the petition. To file a O-1 Visa, the following are required:

1. Form 1-129
2. Consultation
3. Copy of Beneficiary’s Passport
4. Petitioner’s Cover Letter
5. Supporting Documents
6. Filing fees

1. Form 1-129:

To apply for an O-1 visa, the petitioner must file Form I-129 Petition for Nonimmigrant Worker with the USCIS office.  The petition must be filed within a year of the alien’s need of coming to the United States. In order to ensure that the visa is approved in the appropriate time period, one should file Form I-129 at least 45 days before the alien is to continue their work in the United States.

2. O-1 Visa Consultation Requirement:

• The applicant must provide a written advisory opinion from a peer group related to their field of expertise, or from an individual selected by the peer group that also has expertise in the field. The advisory opinion may also come from labor organizations.
• In the case of applicants with expertise in the television or film industry the consultation may come from a labor union or other organization with expertise in the respective field.

Waiving of the O-1 Consultation Requirement:

The consultation requirement may be waived if the petitioner can show that the suitable organization does not exist. In this case, the petition will be solely based on the evidence provided by the petitioner. In the case of the arts, the consultation requirement may be waived if the individual reenters the United States within 2 years of having a previous consultation. In this case, the petitioner should include a copy of the previous consultation along with a waiver request.

3. Copy of Beneficiary’s Passport:

The Beneficiary of the O-1 Visa is the person who will be entering the United States and benefiting from the O-1 Visa status by being able to work whether as an employee or independent contractor completing their itinerary of events.

4. Petitioner’s Cover Letter:

The Petitioner is the company or person who actually files the petition on the Beneficiary’s behalf.  The Beneficiary and the Petitioner are not allowed to be the same person.

Petitioner’s cover letter, first addressing basis of any traditional expedite request and any special procedures desired. Otherwise, letter should specify benefit sought, list filing contents, provide brief background on petitioner, summarize evidence showing beneficiary meets O-1B standards, explain nature of event and services to be rendered, outline any oral contract(s) or specify payment/expense terms of any written contract(s), reiterate classification period start and ending dates, and raise any issues regarding consultation waivers.

5. Supporting Documents:

Copies of beneficiary’s résumé, discography/CD jackets, other biographical materials, reviews, articles, PR materials; full itinerary, supported by all written contracts, agreements, deal memos, letters of intent, etc.

a. O-1 Visa Contract Between the Petitioner and the Beneficiary (Person of Extraordinary Ability):

A written agreement or contract between the petitioner and the beneficiary (person of extraordinary ability) must be provided with the I-129 Petition for Nonimmigrant Worker. An oral agreement may be included instead of a written agreement or contract. The oral agreement may consist of emails, written documents regarding the terms of the agreement, and other correspondences between the petitioner and beneficiary that verifies than an oral agreement was made between the parties. The terms and conditions must include what both parties agree to by entering into the agreement.

b. Itineraries:

Itineraries should include the dates of services (including load-in and rehearsals), the name and address of the employer and the name and address of the venue. In many cases, the name and address of the employer and venue will be the same. For those petitions in which multiple venues are involved, and there is a significant gap between engagements, the itinerary should include information about the artist’s planned activities abroad during the gap.  Also, for petitions involving multiple employers, a master itinerary compiling all activity during the proposed visa classification period is advised.

c. O-1 Visa Agent:

 An agent may be used in the O-1 visa process. The agent can be the employer, represent the petitioner/employer, represent the beneficiary (person of extraordinary ability) or both.

In the case where the person of extraordinary ability will be working in the United States under multiple employers, an agent can act as the petitioner and represent the other employers. In this case, the agent can file the I-129 Petitions for the multiple employers.

If the agent is to act as the petitioner for the multiple employers, the agent must include the following information with the I-129 petitions:

• Documentation specifying the dates, events, and venues in which the person of extraordinary ability will participate in activities related to their field of expertise. The agent must include the names, addresses, and other information on the employers within the time periods specified, as well as the names and addresses of the venues in which the activities will be performed

• Contacts or Agreements between the beneficiary and the specified employers

• The agent must include an explanation of the terms and conditions of each of the provided contacts or agreements between the beneficiary and the actual employers

After the I-129 petition is approved, the person of extraordinary ability may travel to a U.S. embassy or Consulate in order to obtain their visa.

i. Cases Where Agent Is Employer:

In O-1 cases where the agent acts as the employer of the person of extraordinary ability, the agent must include the following information with the I-129 petition:

• An agreement between the agent and the person of extraordinary ability (beneficiary) indicating the wage that is being offered by the agent, as well as the terms and conditions of the agreement. A summary of the terms and conditions of an oral agreement or a written contract between the two parties will suffice
• In cases where the person of extraordinary ability will be performing their services in more than one location, the agent must provide a complete itinerary that contains the dates, locations, and venues in which the services are to be performed. If the agent is to act as the employer, an itinerary is absolutely necessary. It is best to include as much information as possible. The USCIS ultimately decides whether the itinerary requirement is met. The itinerary should conform to the industry standards.

Based upon the provided contract or agreement with the I-129 petition, the USCIS will ultimately determine whether the agent is acting as the employer or whether the agent is representing the employer, multiple employers, the beneficiary, or a combination thereof.

6. Filing Fees:

Always ascertain the appropriate filing fee by checking the U.S. Citizenship and Immigration Services (USCIS) fee charts, on the USCIS web site.

• The fee for the regular I-129 petition for a nonimmigrant worker is $460.

• The fee for the I-907 premium processing form is $1440 (optional)

• The fee for the I-539 petition to extend/change status (used for spouses and dependents) is $370.

Payment should be made by business or personal check, money order or cashier’s check, payable to “Department of Homeland Security.” Separate checks should be used for each fee paid. Do not pay fees in cash or stamps.