O-1 Visas : Nonimmigrant Visas for Aliens of Extraordinary Ability
Posted Oct 12, 1998

The O category is a nonimmigrant visa category for nonimmigrants of extraordinary ability. Generally O visas are used either because the person is subject to the two year home residency requirement, has not yet obtained a waiver and cannot apply for the H1B but can apply for the O visa, or when the H1B cap has been reached, it is a good alternative for those who qualify.

The initial period of stay can be approved for the time necessary to complete the activity for which the nonimmigrant is admitted, up to a period of three years. Extensions of stay can be granted in increments of up to one year to continue or complete the activity for which the person of extraordinary ability is admitted. The real benefit of the O1 over a simple H1B is that an educational or professional degree is not essential for approval and no prevailing wage requirement exists.

The O category is for those of extraordinary ability in the sciences, arts, education, business or athletics, and those accompanying or assisting such persons and their family members.

There are three different standards for the O1 category: 1) the most exacting standard applies to aliens in the sciences, education, business and athletics; 2) a much less rigorous standard applies to individual aliens in the arts; and 3) an intermediate standard applies to aliens of extraordinary achievement in the motion picture or television industries.

The standard and criteria are similar to the EB1: First Preference Employment Based immigrant category. The highest standard requires that the alien demonstrate sustained national or international acclaim and recognition of achievements in the field by providing: A) evidence of a one-time achievement of a major internationally recognized award like the Nobel Prize; or B) evidence which will satisfy at least three of the following forms of documentation:

a) Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

b) Membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

c) Published material in professional or major trade publications or other major media about the alien;

d) Participation, either individually or on a panel, as a judge of the work of others;

e) Original scientific, scholarly, artistic, athletic or business-related contributions of major significance in the field;

f) Alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;

g) Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation;

h) High salary or other significantly high remuneration for services, in relation to others in the field; or

i) Other comparable evidence.

Besides meeting the above criteria, a consultation with an appropriate peer group, labor organization and/or management organization regarding the type of work to be performed and the qualifications of the proposed beneficiary must be completed. The peer group must provide a written opinion to the INS. If the application does not include a peer group the INS will attempt to contact the peer group directly, or, if no peer group exists, the INS will make a decision without a peer group consultation. The INS will not require a new consultation if the beneficiary is reentering the U.S. in the O1 category within two years of a previous peer group consultation. Unlike the EB1 category, the O category requires employment and sponsorship by the employer.

Another noteworthy benefit of the O1 Visa over the H1B is that individuals currently on J1 visas can transfer to the O category without having completed the 2 year home residency requirement or having received the waiver of the 2 year home residency requirement. Such individuals will be required to travel abroad to apply for the O1 Visa after approval of the Petition.

Some examples of recent approvals in the O1 Visa category by The Law Office of Sheela Murthy, include, a Fitness and Business Consultant who has success in turning around health and fitness centers around the world and medical doctor researchers who have strong research-based experience who had not yet applied for the waiver of the home residency requirement. For strategic considerations, we opted for the O1 category approvals for these extraordinarily talented individuals.