O-1 Visa Category

Individuals With Extraordinary Ability in the Sciences, Arts, Education, Business, and Athletics

Under U.S. immigration law, an individual who has risen to the upper ranks of his or her field of endeavor may qualify for a visa that permits him or her to come to the United States to work in that field. This visa, known as the O-1 visa, is available to those engaged in a wide range of occupations, including CEOs, advertising executives, researchers, professors, music industry professionals (musicians, producers, deejays, sound engineers and others), painters, photographers, graphic artists, fashion designers, hairstylists, film and television professionals (actors, producers, directors and others), and many others.

The O-2 visa category allows essential support personnel of an O-1 caliber individual to accompany the O-1 visa holder to work on projects in the United States. Examples of common O-2 visa situations include a film director bringing his director of photography and make-up artist to the States to work on the U.S. set of a film project, a popular singer bringing her supporting musicians on her U.S. tour, or a photographer bringing her assistant photographer for a major fashion shoot.

Spouses and unmarried children under 21 of O-1 and O-2 visa personnel can accompany the O-1 or O-2 visa holder in O-3 visa status.

The duration of an O visa varies from case to case and is tied to the duration of the event or events for which the visa holder is coming to the United States for. Thus, a director coming to the United States to shoot scenes for movie may require a visa lasting only a few weeks, whereas a graphic artist with multiple projects lined up may be granted a three year visa. While the maximum duration of an O visa is three years, in some cases the visa may be extended subject to USCIS imposed limitations.

One common misconception about the O-1 visa is that it permits the visa holder to freelance in the United States. In fact, sponsorship by a U.S. employer or agent is required in order to obtain O-1 visa status and that employer or agent must act as the petitioner on the visa petition to USCIS. Further, the applicant must have events or work (i.e. an itinerary) lined up in order to obtain approval of the petition; put differently one cannot first obtain an O-1 visa and then come to the United States to look for work. While applicable USCIS rules regarding sponsorship and itineraries are complicated, they are more flexible than one might expect.

Another aspect of the O visa category that bears mention is the involvement of labor and management organizations in the process. U.S. law requires that before USCIS can approve an O-1 or O-2 visa petition there must be a consultation with a labor and/or management organization in the applicant’s field of endeavor. Generally, it is the responsibility of the visa petitioner to contact the appropriate organization and obtain the consultation, which is also referred to as advisory opinion. Each organization has its own requirements for issuance of a consultation and careful planning in this regard is essential in successfully obtaining O-1 or O-2 status.

Unlike other visa categories, the O visa generally doesn’t require the visa holder to work full-time or to remain in the United States for specified periods of time. In fact, many O visa holders reside in their home country and only travel to the U.S. for events such as tours or filming.

The most important consideration in any potential O-1 visa case is the question of whether or not the candidate meets the “extraordinary ability” requirement. With the exception of those who have earned or been nominated for a Grammy, BAFTA, Effie, Cannes Lion or other leading industry award, this is not an easy determination. The law holds individuals to different standards within the O-1 category. Thus, one standard of achievement – the highest – applies to those in the O-1A category, which encompasses individuals in the sciences, business, education and athletics, while a lower standard applies to those in the arts (musicians, dancers, visual artists, etc.). An intermediary standard applies to those in the motion picture and television industries (directors, producers, actors, etc.) Further, USCIS subjects evidence submitted in support of O-1 petitions to a great deal of scrutiny, giving considerable weight to some evidence (e.g. a review of the applicant’s work in a major newspaper) and less weight to other evidence (e.g. a letter written by an individual with a limited working history with the applicant). A comprehensive CV, portfolio, credit list is essential in determining whether or not you meet the high standards for O-1 classification.

Like other areas of U.S. immigration law, a careful case review is highly advisable before investing time and expense in applying for an O-1 visa. There are many factors that come into play in a successful O-1 visa petition, including the applicant’s accomplishments, contract issues, union advisory opinions and sponsorship requirements. The attorneys of Jones Fletcher have extensive experience in both O-1A and O-1B visas. Our clientele, past and present, includes numerous major film and television figures, platinum selling musicians, business executives and a host of other highly successful individuals from around the world. If you are considering applying for an O-1 visa, we encourage you to contact us for a case evaluation.