O-1 Classification
A highly qualified individual with extraordinary ability in the sciences, education, business, athletics, or arts, or extraordinary achievement in the motion picture and/or television (MPTV) industry, who has been recognized nationally or internationally for his or her achievements, may be eligible for the O-1 nonimmigrant classification if the individual is coming to the US temporarily to continue work—perform services relating to event(s)—in the area of extraordinary ability or achievement, respectively.
The O-1 classification is broadly interpreted to cover any field of endeavor. Fine arts, visual arts, culinary arts (i.e. chefs), and performing arts are all within the scope of “arts”, which broadly covers any field of creative activity/endeavor. This field includes principal creators and performers, as well as essential persons—designers (set, lighting, sound, costume), directors, conductors, orchestrators, choreographers, choreologists, coaches, musical supervisors, arrangers, stage technicians, animal trainers, flight masters, and makeup artists, among others.
MPTV productions, including streaming movies, web series, commercials, as well as other traditional MPTV formats, fall within the scope of the MPTV industry, although social media content, self-produced video blogs, and static web materials are generally excluded. An individual of extraordinary ability’s incidental appearance in a MPTV production (and/or incidental appearance of his or her non-MPTV work), does not in itself establish that the individual may qualify as having extraordinary achievement in MPTV (such as a contestant in a reality-based production). Paid professionals of a MPTV production company, however, may be considered as working in the MPTV industry (such as hosts and judges in a reality-based production).
The regulatory definitions for the O-1 nonimmigrant classification define “Extraordinary ability in the field of science, education, business, or athletics”, “Extraordinary ability in the field of arts”, and “Extraordinary achievement”, in relation to the specific O-1 classification, as follows:
O-1A: Extraordinary ability in science, education, business or athletics means a level of expertise indicating that the person is one of the small percentage who has arisen to the very top of the field of endeavor.
O-1B Arts: Extraordinary ability in the field of arts refers to distinction—a high level of achievement in the field, where such individual is recognized as prominent (renowned, leading, or well-known in the field), with a degree of recognition and skills substantially above that ordinarily encountered.
O-1B MPTV: Extraordinary achievement in the MPTV industry refers to a very high level of accomplishment in the MPTV industry, where such individual is recognized as outstanding, notable, or leading in the MPTV field, with a degree of recognition and skill significantly above that ordinarily encountered.
To obtain the respective O-1 classification, an O-1 petitioner must first file an O-1 petition with US Citizenship and Immigration Services (USCIS) on behalf of the O-1 beneficiary, and such O-1 petition must ultimately be approved by USCIS.
O-1 Petitioner
As O-1 “petitioner”, a US employer seeking to sponsor a foreign national in the O-1 classification can file the O-1 petition on behalf of the O-1 beneficiary. If the O-1 beneficiary will be employed by more than one employer, each separate employer must file a separate petition on behalf of the O-1 beneficiary, unless the O-1 petition is filed by a US agent.
A US agent can serve as the petitioner and file the O-1 petition on behalf of a traditionally self-employed foreign national or one who uses an agent to arrange multiple short-term employment engagements with employers. A US agent can also serve as the authorized US representative of a foreign employer. In other words, the US agent can be the O-1 beneficiary’s actual employer; the dual representative of the O-1 beneficiary and the actual employer; or a person or organization authorized by the employer to act for/in place of the employer as its agent.
If performing the US employer function, the US agent must have in place (and provide) a contractual agreement with the O-1 beneficiary, specifying the offered wage as well as other terms and conditions of employment.
A US person or company in business as agent, which represents both the O-1 beneficiary and multiple employers, can file the petition, as long as the supporting documentation includes: a complete and detailed itinerary of the event(s), including service engagement dates, employer names/addresses, and establishment/venue location names/addresses where the services will be performed; and employer O-1 beneficiary contracts. The US agent must explain the terms and conditions of the employment and provide any required documentation. As the US agent must be duly authorized to represent both the employers and the O-1 beneficiary, signed agency representation agreements should also be included in the O-1 petition documentation.
For any changes in the terms and conditions of the O-1 beneficiary’s employment, which may affect O-1 eligibility, the O-1 petitioner is responsible for immediately notifying USCIS. The O-1 petitioner must send a written letter to USCIS where the O-1 petitioner no longer employs the O-1 beneficiary. The employer, and O-1 petitioner if different from the employer, are jointly and severally liable for reasonable costs of return transportation of the O-1 beneficiary to the last place of foreign residence, if the O-1 beneficiary is terminated on a non-voluntary basis.
Although an O-1 beneficiary cannot self-petition for O-1 status, if the O-1 beneficiary owns a separate legal entity (i.e. a corporation or limited liability company), the separate legal entity may file the O-1 petition on behalf of the O-1 beneficiary.
O-1 Position
The O-1 beneficiary must be seeking to enter the US temporarily to continue working—performing services relating to event(s)—in his or her area of extraordinary ability or achievement, although the specific duties to be performed for the US employment need not strictly require someone of extraordinary ability or achievement.
An event is an activity, including a group of related activities, which can include an engagement, business project, exhibit, scientific project, convention, conference, lecture series, academic year, tour, or athletic contract. A job can be considered an “activity” if it is within the O-1 beneficiary’s area of extraordinary ability, although speculative employment or freelancing are not allowed.
The activities and events underlying the requested O-1 validity period must be related and connected in such a way to be considered an event. A gap of days between activities does not necessarily establish a new event; relevant or incidental promotional appearances, short vacations, attendance of seminars, stopovers, and travel between engagements can be included in such activity, and do not necessarily interrupt the event.
The phrase “area of extraordinary ability” is interpreted to include the specific occupation the O-1 beneficiary has achieved acclaim in, as well as additional occupations with shared skillsets, knowledge, or expertise, as supported by relevant factors, such as: proposed occupation and prior occupation are in same industry, or share related duties or expertise; proposed occupation is a leadership/management/supervisory position that oversees the prior position, or otherwise requires shared knowledge, skills, or expertise; and transition between/among the occupations is common for persons based on experience and knowledge.
The phrase “area of extraordinary achievement” is interpreted to include any proposed work within the MPTV industry.
If services are to be performed by the O-1 beneficiary in more than one location, a detailed itinerary must be included with the O-1 petition documentation.
O-1 Beneficiary
To qualify for the O-1 classification, the O-1 beneficiary must be eligible in addition to satisfying certain evidentiary criteria, which are the establishment mechanism to facilitate USCIS determination on whether the corresponding standard has been met. Besides satisfying evidentiary criteria, the total record of evidence must also establish that the O-1 beneficiary meets the required standard for extraordinary ability or achievement.
O-1A (Extraordinary Ability)
Eligibility:
1) Extraordinary ability in the sciences, education, business, or athletics, demonstrated by sustained national or international acclaim—the O-1A beneficiary is one of the small percentage who has arisen to the very top of the field;
2) Achievements recognized in the field through extensive documentation; and
3) Seeking US entry to continue work in the area of extraordinary ability.
Evidentiary Criteria:
Receipt of a major, internationally recognized award (i.e. Nobel Prize); or satisfaction of at least three of the following evidentiary criteria:
(1) Documentation of the alien’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
(2) Documentation of the alien’s 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;
(3) Published material in professional or major trade publications or major media about the alien, relating to the alien's work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation;
(4) Evidence of the alien’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought;
(5) Evidence of the alien’s original scientific, scholarly, or business-related contributions of major significance in the field;
(6) Evidence of the alien’s authorship of scholarly articles in the field, in professional journals, or other major media;
(7) Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation;
(8) Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.
Where the specific evidentiary criteria are not readily applicable to the O-1A beneficiary’s occupation, comparable evidence to establish the O-1A beneficiary's eligibility may be submitted by the O-1A petitioner.
O-1B Arts (Extraordinary Ability)
Eligibility:
1) Extraordinary ability in the arts, demonstrated by sustained national or international acclaim—distinction in the field of arts, a high level of achievement in the field, where the O-1B Arts beneficiary is recognized as prominent (renowned, leading, or well-known in the field), with a degree of recognition and skills substantially above that ordinarily encountered;
2) Achievements recognized in the field through extensive documentation; and
3) Seeking US entry to continue work in the area of extraordinary ability.
Evidentiary Criteria:
Nominated for, or recipient of, significant national or international awards or prizes in the particular field (i.e. Academy Award, an Emmy, a Grammy, or a Director's Guild Award); or satisfaction of at least three of the following evidentiary criteria:
(1) Evidence that the alien has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications contracts, or endorsements;
(2) Evidence that the alien has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications;
(3) Evidence that the alien has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials;
(4) Evidence that the alien has a record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications;
(5) Evidence that the alien has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged. Such testimonials must be in a form which clearly indicates the author's authority, expertise, and knowledge of the alien’s achievements;
(6) Evidence that the alien has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence;
Where the specific evidentiary criteria are not readily applicable to the O-1B Arts beneficiary’s occupation, comparable evidence to establish the O-1B Arts beneficiary's eligibility may be submitted by the O-1B Arts petitioner.
O-1B MPTV (Extraordinary Achievement)
Eligibility:
1) Demonstrated record of extraordinary achievement in MPTV productions—very high level of MPTV industry accomplishment evidenced by skill and recognition degree significantly above that ordinarily encountered to the extent the O-1B MPTV beneficiary is recognized as outstanding, notable, or leading in the field; and
2) Seeking US entry to continue work in the area of extraordinary achievement.
Evidentiary Criteria:
Nominated for, or recipient of, significant national or international awards or prizes in the particular field (i.e. Academy Award, an Emmy, a Grammy, or a Director's Guild Award); or satisfaction of at least three of the following evidentiary criteria:
(1) Evidence that the alien has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications contracts, or endorsements;
(2) Evidence that the alien has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications;
(3) Evidence that the alien has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials;
(4) Evidence that the alien has a record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion picture or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications;
(5) Evidence that the alien has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged. Such testimonials must be in a form which clearly indicates the author’s authority, expertise, and knowledge of the alien's achievements;
(6) Evidence that the alien has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to other in the field, as evidenced by contracts or other reliable evidence.
Comparable evidence to establish the O-1B MPTV beneficiary's eligibility is not accepted in lieu of the specific evidentiary criteria for O-1B MPTV.
O-1 Duration
The O-1 beneficiary may be approved for an initial temporary period of O-1 status—to accomplish the initial event(s) or activit(ies), including event connected services/activities—for up to 3 years.
An extension of O-1 status is available in up to 1 year increments for completion of the same event or activity—including continuing employment/research in the same capacity/activities. If the O-1 extension request is based on a new event or activity, the extended temporary period of O-1 status can be up to 3 years, if necessary to accomplish the new event/activity—including continuing employment involving different activities.
There is not a maximum limit on the number of O-1 extension petitions that may be filed on behalf of an O-1 beneficiary.
Based on a timely filed O-1 extension petition, the O-1 beneficiary’s work authorization will be automatically extended for up to 240-days after the prior O-1 expiry date, while the O-1 extension petition remains pending.
O-1 Amendment
After the O-1 petition is approved, if there is a material change to the O-1 beneficiary’s terms and conditions of employment or O-1 eligibility, the O-1 petitioner must file an O-1 amendment petition with USCIS. A material change would include a US agent filing an O-1 amendment petition to add a new US employer, where the US agent already represents the O-1 beneficiary and other employers. As an exception, during an already approved O-1 validity period of an O-1 entertainer or artist, if an O-1 petitioner will add additional engagements or performances, which require an O-1 caliber beneficiary, an O-1 amendment petition may not be necessary.
O-1 Transfer
For the O-1 beneficiary to change his or her US employer, the new US employer (or US agent) must file an O-1 change of employer petition with USCIS, which may also request to extend the O-1 status of the O-1 beneficiary. In most cases, the O-1 beneficiary will not be able to begin working pursuant to the O-1 change of employer until it is approved by USCIS, and subject to the new approved O-1 validity period. As an exception, for a professional O-1A (Athlete) who has been traded to another organization, employment authorization may continue for a 30-day period after the O-1A (Athlete) is acquired by the new organization, as long as an O-1A change of employer petition is filed by the new organization within such 30-day period. Employment authorization may continue while the O-1A petition remains pending, and until there is a final decision on the O-1A petition (i.e. approval).
O-2 Essential Support Personnel
By a separate O-2 petition, the essential support personnel of an O-1A (Athlete), O-1B (Artist), or O-1B MPTV principal, may be approved for the O-2 classification, if the essential support personnel are accompanying the O-1A (Athlete), O-1B (Artist), or O-1B MPTV principal to the US, and meet certain requirements:
· Essential Support Personnel of O-1A (Athlete) or O-1B (Artist): the O-2 beneficiary must be coming to the US to assist in the athletic or artistic performance of the O-1A (Athlete) or O-1B (Artist); be an integral part of the actual performance/event; and possess critical skills and experience with the O-1A (Athlete) or O-1B (Artist) beneficiary—not of a general nature, and not possessed by US workers; or
· Essential Support Personnel for O-1B MPTV principal: the O-2 beneficiary must be coming to the US for involvement with a MPTV production of the O-1B MPTV principal, and have critical skills and experience (not of general nature) with the O-1B MPTV principal, based on a pre-existing longstanding working relationship; or in connection with a specific production (pre/post-production), that will take place in the US and abroad, where the O-2 beneficiary’s continuing participation is essential for successful production completion.
The O-2 petition documentation must establish that the O-2 beneficiary has substantial experience performing the essentially supporting, critical skills services for the O-1 principal, where documentation must also support the O-2 beneficiary’s current essentiality, critical skills, and experience. For a specific O-1B MPTV production, the documentation must establish significant production will take place in the US, and has already occurred outside the US, with the O-2 beneficiary’s continuing participation being essential for successful production completion.
The work of an O-2 beneficiary cannot be separate or apart from the supported O-1 principal, including where the O-1 principal changes to a different employer (i.e. the O-2 beneficiary must also transfer employment to the new employer, as applicable). Although the O-2 beneficiaries cannot be included in the O-1 petition of the O-1 principal, up to 25 named O-2 beneficiaries can be included on a separate O-2 petition.
The O-2 beneficiary must have a foreign residence which he or she has no intention of abandoning.
The O-2 classification is not available for the essential support personnel of O-1 beneficiaries with extraordinary ability in education, business, or science.
O-1/O-2 Consultation
The O-1 and O-2 petition process require a mandated consultation from a US peer group, labor organization, and/or management organization, although consultations with experts in the area of ability may be accepted in certain cases. The consultations must be in the form of advisory opinion letters from the proper authorities, unless the O-1 petitioner establishes that an appropriate peer group or labor organization does not exist.
· O-1A and O-1B Arts: the O-1 petitioner must provide an advisory opinion letter from a US peer group, such as a labor organization, in the O-1 beneficiary’s area of ability (or an advisory opinion from a person with expertise in such area);
· O-1B MPTV: the O-1B MPTV petitioner must provide advisory opinion letters from both the union representing the O-1B MPTV beneficiary’s occupational peers, and a management organization in the O-1B MPTV beneficiary’s area of ability;
· O-2: the O-2 petitioner must provide an advisory opinion letter from the labor organization having expertise in the skills area; if the O-2 beneficiary will be employed in the MPTV industry, an advisory opinion letter from a management organization must also be provided.
The advisory opinion letter will need to include necessary details, such as certain information about the O-1/O-2 beneficiary and if there is “no objection”, among other details, if such letter is favorable. If the letter is not favorable to the O-1/O-2 petitioner, the letter must include a specific statement of facts supporting the letter’s conclusion.
Regardless of favorability, the advisory opinion letters are not binding on USCIS, and do not necessarily determine the ultimate decision USCIS will make on a particular case, although USCIS may consider advisory opinion letter substance within the totality of evidence.
For an O-1B Arts petition, the consultation may be waived if the O-1B Arts beneficiary seeks readmission to the US to perform similar services within 2 years of the date of the previous advisory opinion letter.
O-3 Dependents
By separate application, the O-1/O-2 beneficiary’s spouse, and unmarried children under the age of 21, may be eligible for O-3 dependent status/visas, in connection with the O-1/O-2 beneficiary’s status. The O-3 dependents are not eligible for work authorization in connection with O-3 status.
O-1 Petition Process
The O-1 petition is prepared and filed with USCIS. The O-1 petitioner may not file the O-1 petition more than 1 year before the actual need of the O-1 beneficiary’s services. After USCIS approval of the O-1 petition, if the O-1 beneficiary is outside of the US, the O-1 beneficiary applies for an O-1 visa at a US Embassy/Consulate abroad (if a visa is required). After obtaining the O-1 visa, the O-1 beneficiary will have to travel to the US, and be admitted to the US at the US Port of Entry in O-1 status, where an electronic I-94 is then issued by US Customs and Border Protection (US CBP). For an extension of O-1 status in the US, an extension petition is prepared and filed with USCIS. Where approved, USCIS will issue an O-1 approval notice that has the O-1 beneficiary’s new paper I-94 attached to it.
O-1 Petition Processing Time
The regular processing time of an O-1 petition will be around 7 months, although the processing time is subject to fluctuate. For an additional fee, premium processing is available for O-1 petitions, which may allow a decision on the O-1 petition within 15 business days. Where an O-1 petition is ultimately approved, USCIS will issue a formal O-1 approval notice.
O-1 Fees
The required O-1 petition filing fees will depend on the type and size of the O-1 employer. The estimated cost range is from $530 to $1,655, where legal and administrative fees for attorney assistance would be an additional amount. The estimated cost range does not include the cost of optional premium processing ($2,805) for a particular O-1 petition; separate O-2 essential support personnel petition (if applicable); O-3 dependent applications; filing a response to a request for evidence (RFE) or notice of intent to deny (NOID); or filing a motion or appeal, each of which would entail additional costs (as applicable).
O-1 RFE or NOID
Post-filing, for some O-1 petitions, USCIS may issue a RFE or a NOID, which would require a formal response (simple, moderate, or complex). The issuance of a RFE or NOID does impact the processing time of the O-1 petition (regular and premium processing), and depending on the issues raised by USCIS (simple, moderate, or complex), could pose a substantial challenge for ultimate approval of the O-1 petition. Timely consulting with an experienced immigration attorney is essential for properly preparing and filing the O-1 petition, as well as making the petition as strong as possible to reduce the risk of a RFE or NOID. Although there is not a USCIS fee required to prepare and file a formal response to the RFE or NOID (as applicable), an additional legal and administrative fee would typically be necessary for attorney assistance.
O-1 Denial
If the O-1 petition is ultimately denied by USCIS, depending on the reasons for the denial, it may be possible to file a motion or an appeal of the denial decision. An appeal entails a request for a different authority, USCIS Administrative Appeals Office (AAO), to review the denial decision of the petition. A motion to reopen requests the USCIS office that denied the O-1 petition to review its denial decision, based on new facts—those not previously submitted in the proceeding—as supported by affidavits or other documentary evidence. A motion to reconsider requests the USCIS office that denied the O-1 petition to review its denial decision, based on an incorrect application of law or policy.
The appeal or motion must be submitted with the appropriate form, filing fee, and documentation within the required time period. The AAO works to process appeals (and motions) within 180 days, and USCIS service centers work to process motions within 90 days, although these processing times are not guaranteed.
The filing of an appeal or motion does not delay the O-1 denial decision from going into effect (or extend the previously set departure date). Further, it is not certain that the appeal or motion will ultimately be successful, such as to reverse the unfavorable decision on the petition.
Timely consulting with an experienced immigration attorney is essential for determining the best strategy for an O-1 denial decision based on the circumstances.
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