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.
Proving Extraordinary Abilities
The U.S. Citizenship and Immigration Services (USCIS) regulation provides two ways (Basis A and B, described below) of showing evidence of extraordinary ability.
Basis A: Receipt of a Nobel Prize Caliber Award
An individual may qualify for the 0-1A category based on the receipt of the Nobel Prize or other award similar in international standing.
To demonstrate that one has received a major internationally recognized award, the individual must show:
- The criteria used to grant the award
- The significance of the award in the field
- The reputation of the organization or the panel granting the award
- Previous winners of the award who enjoyed international acclaim at the time of receiving the award
- The award attracts competition from internationally recognized individuals in the field
Basis B: Documentation Showing Extraordinary Ability
The individual must show at least three of the following:
- Have you received a lesser nationally or internationally recognized prize or award for excellence in the field of endeavor?
- Are you a member of any associations, which require outstanding achievements of their members as judged by recognized national or international experts?
- Is there published material in professional or major trade publications or major media about you, which relates to your work in the field?
- Have you participated on a panel or individually as a judge of the work of others in the same or in an allied field of specialization?
- Have you made original scientific, scholarly or business-related contributions of major significance?
- Have you authored scholarly articles in professional journals or other major media?
- Have you been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation?
- Have you or will you command a high salary or other remuneration for your services?
To understand what is required for each of the Basis B requirements, below will go into further detail about how each requirement can be satisfied:
1. How to demonstrate that one received a major recognized prize or award for excellence in the field of endeavor?
- Documentation verifying the origination, purpose, significance and scope of each award
- Criteria used to nominate and judge the participants and award winners
- The reputation of the organization or panel granting the prizes or awards
- How many prizes or awards are awarded each year
- Previous winners of each award
2. What evidence can one provide that establishes that they are a member of an association, which requires outstanding achievements of its members?
- The minimum requirements and criteria used to apply for membership
- The number of members in the association
- The status of the association within the national or international community in the field of endeavor
- Evidence of national or international experts who make determinations about membership
- Other relevant requirements for membership
3. How to demonstrate that materials have been published about the individual?
- The name of the publication and a description of the significance of the published material
- The circulation information of the published material (e.g. local, national or international circulation) and the number of copies provided for circulation
- The frequency of the publication
4. How to demonstrate that the individual participated on a panel or was a judge of the works of others?
- Evidence showing the significance of the work you judged
- Information identifying the criteria used to select the judges
- An explanation describing how and why you received an invitation to be a judge
5. How to demonstrate that one has made an original scientific, scholarly or business related contribution of major significant?
- Objective documentary evidence of the significance of your contribution to the field (e.g. patents, pioneering new technology, etc.)
- Documentary evidence that people in the field of endeavor currently consider your work important
- Testimony or support letters from experts that discuss your contributions of major significance, which could include:
- Letters of recommendation from prominent investors which describe, in detail, your achievements in and how such achievements are of a major significance in the field;
- Letters from CEO’s/founders of distinguished organizations that detail your achievements and how they are of a major significance in the field.
- Evidence that your major significant contributions have provoked widespread public commentary in the field of endeavor and have been widely cited;
- Evidence of your work being implemented by others such as:
- Contracts with companies using the beneficiary’s products;
- Licensed technology being used by others; and
- Patents currently being used and shown to be significant to the field.
- If your business successes are primarily based on-line, evidence of website usage/visitor traffic to your website, including the number of individuals that have purchased and/or downloaded your product(s) or applications
6. How to demonstrate authorship of scholarly articles in professional journals or other major media:
- Other articles or documentary evidence (e.g. letters, affidavits) that show the significance and importance of the articles in your field
- Evidence that demonstrates the work was primarily created by you
- The significance and importance of the professional or major trade publications or other major media in which your scholarly article was published, which may be shown by submitting evidence of:
- The publication’s circulation (e.g. local, national or international)
- How often the publication is produced
- The number of citations to your written work
7. How to demonstrate that one has been employed in a critical essential capacity for an organization with distinguished reputation:
- A letter from the employer which establishes your employment in a critical capacity with the organization or establishment
- Publications written about your employment in a critical or essential capacity
- Publications recognizing the organization or establishment where you worked in the critical or essential capacity as having a distinguished reputation
8. How to demonstrate that one command or has commanded a high salary?
- Copies of employment contracts detailing the salary you were paid or will be paid
- Copies of payroll documents or tax returns detailing the wage you were paid
- Evidence establishing that you have received other significant forms of compensation for your services, which may include, but is not limited to, equity in-lieu of cash remuneration, deferred compensation, profits from the sale of a business you started, or other forms of remuneration in addition to salary
- A statistical comparison of the salaries in the field in which you are starting your business from a government or private institution or a similar organization. The comparison should show that the salary or other remuneration you commanded, or will command, is significantly higher than that commanded by others in the field
Merely providing three sources of evidences does not establish that the foreign national possess extraordinary ability. USCIS considers the quality of the evidence provided and not just whether the minimum amount of documentation has been submitted.
Documentation evidence for an O-1A petition may be in a form of:
- Affidavits, contracts, awards, or other documentation reflecting the nature of the foreign national’s achievement certified by an offer or responsible person employed where the work was performed.
- Affidavits written by present and/or former employers or recognized experts attesting to the reputation and extraordinary ability of the foreign national.
Photocopies of all documents are acceptable. All documents that are not in English must be accompanied by a certified translation.
O-1 Visa Filing Requirements
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:
- Form 1-129
- Copy of Beneficiary’s Passport
- Petitioner’s Cover Letter
- Supporting Documents
- Filing fees
O-1 Filing Requirements In Further Detail
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.
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 $325.
• The fee for the I-907 premium processing form is $1225 (optional)
• The fee for the I-539 petition to extend/change status (used for spouses and dependents) is $290.
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.