O Visa for Extraordinary Ability

Statutory Background

The Immigration and Nationality Act §101(a)(15)(0) defines the O classification, aided by §207 of the Immigration Act of 1990:

• The O-1 category is for individual aliens of extraordinary ability in the field of science, art, education, business or athletics
• The O-2 category is for aliens accompanying O-1 aliens in the arts and athletics
• The O-3 category is for spouses and dependents of aliens

O-1 Category & “Extraordinary” Standard

Beneficiaries of the O-1 category must have extraordinary ability demonstrated by sustained national or international acclaim. But "extraordinary" requires a high standard as applied to businesspersons, scientists, educators, and athletes and a much lower one as applied to artists and entertainers. However, artists and entertainers in the television and motion picture Industry must show "a demonstrated record of extraordinary achievement," a standard that falls somewhere in the middle.

8 CFR §§214.2(o)(2)(ii) and (iii) details the documentary requirements. The achievements of all types of O-1 beneficiaries must be recognized in the field through extensive documentation.

Evidence of Extraordinary Ability

The petitioner must establish the alien’s extraordinary ability by submitting evidence that the beneficiary is coming to the U.S. to continue to work in the area of extraordinary ability.

Scientists, Educators, Businesspersons & Athletes

These categories may be admitted under O-classification, provided they seek entry to continue work in their area of expertise, which means “a level of expertise indicating that the person is one of the small percentages who has risen to the very top of their field of endeavor."

The evidence may be beneficiary’s receipt of a major, internationally recognized award like the Noble prize or documentation of at least three of the following:

• Receipt of nationally or internationally recognized prizes/awards for excellence in the field;
• Membership in associations in the field that require outstanding achievement of their members;
• Published material in professional or major trade publications or major media about the alien;
• Participation on a panel or as a judge of the work of others in the same or an allied field of specialization;
• Original scientific, scholarly, or business-related contributions of major significance;
• Authorship of scholarly articles in professional journals or other major media;
• Current or previous employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation;
• Past or proffered high salary or other remuneration for services, evidenced by contracts or other reliable evidence.

These standards are identical to those employment based first–preference petitions for aliens of “extraordinary ability” and similar to those under Schedule A, Group II for the Labor Certification Process.

Comparable Evidence

To provide additional flexibility, the regulations state that if the above-mentioned standards do not readily apply, the petitioner can submit comparable evidence of eligibility. Such evidence includes written testimony of experts in the same or closely related field. The testimony should include documentation of the author’s expertise, how the author knows the foreign national, and the author’s opinion. However, it should be noted that the specified criteria are suggestions only and not mandatory, hence, comparable evidence may be used only if the specified criteria do not apply to the activities in question.

Defining the Field of Endeavor

The key to success in obtaining the O-1 classification is in defining the “field of endeavor” in which the beneficiary has risen to the top. It is easier to exhibit this in a narrowly defined field with a select membership than a general one. There is a chance of denial if the USCIS feel the field is defined too narrowly.

Documentation is more important in obtaining the O-1 visa. Scientists with more documentation demonstrating their success may not have much difficulty, but those lacking the same may find it very hard to get the O-1 visa. Instances like confidentiality agreements and employers’ reluctance to disclose competitive information through the patent process make it difficult to meet the applicable standards.

Artists & Entertainers

Aliens of extraordinary ability are eligible for O category visas provided they continue to work in their area of ability. Extraordinary ability for this category means "distinction," i.e., “a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading or well-known in the field of arts.”

O-1 status in the arts is available to any field of creative activity or endeavors like fine arts or performing arts. Hence, categories like performers, technical, creative personnel i.e. set designers, choreographers, music coaches, and animal trainers, qualify for O-1 visa. Petitioners must show that the O-1 beneficiary meets the standard of distinction. This can be demonstrated by showing the beneficiary has been nominated for or has received a significant national or international award or prize such as "Academy Award, Grammy, or Director’s Guild Award."

The O-2 Category

The O-2 category is for aliens seeking to accompany O-1 aliens in the arts, motion picture, television productions, and athletics. Aliens seeking the O-2 visa must enter for the purpose of (1) assisting the O-1 in performance; or (2) must have critical skills and experience with O-1 which cannot be performed by a U.S. worker.

Contact Us

If you have questions about an immigration matter, and/or you need help in the process, please contact our immigration attorneys or call The Law Firm of Shihab & Associates at the nearest office close to you to speak with an attorney. We are located in Columbus Ohio, Cleveland Ohio, Southfield Michigan and Washington, D.C.