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CHAPTER 10 - O Visas For Individuals With Extraordinary Ability
by Mark A. Ivener

THE O-1 VISA

The O nonimmigrant visa category applies to aliens of extraordinary ability in the arts, athletics, sciences, education, business, or the motion picture or television industry who are coming to the United States to perform temporary services relating to an event or events. It is also available to accompanying aliens who are coming to assist in the artistic or athletic performance of an alien of extraordinary ability.

  1. WHO IS ELIGIBLE
  2. A foreign national who has extraordinary ability in the arts, athletics, sciences, education, or business, and is coming to the United States temporarily to perform services for a U.S. employer in his/her area of expertise may be granted an O-1 visa "extraordinary ability" means that the alien has reached a level of expertise indicating that he/she is one of a small percentage who have risen to the very top of his/her field of endeavor. Also, the position the alien is coming to fill must require the services of an individual of extraordinary ability.

    The "Arts" may also include aliens in the motion picture or television industry. To qualify for an O-1 visa, individuals in this industry are held to a slightly different standard that others applying for an O-1 visa. They must document "extraordinary achievement" through a demonstrated record of "distinction" or prominent. "Distinction" means a high level of achievement and skill substantially above that ordinarily encountered to the extent that the alien described as prominent is renowned, leading, or well-known in the field.

  3. HOW TO APPLY
  4. An employer may file a petition with the INS Regional Service Center having jurisdiction over the where the job will be performed. If the job requires the alien to work in different locations, then the petition must be filed with the INS Service Center that has jurisdiction in the are where the petitioner is located. If a foreign employer working through a U.S. agent files on behalf of the alien, the petition must be filed with the Service Center that has jurisdictions in the area where the alien will first work. If the alien's employment terminates for other than voluntary resignation, the employer and the petitioner are jointly responsible for the reasonable cost of return transportation of the alien to his/her last place of residence prior to his/her entry into the United States.

    The petition must establish that the alien is an individual with extraordinary ability and that the position requires the services of an individual with extraordinary ability. To demonstrate the latter, the position must meet one of the following criteria:

    1. The position or services to be performed must involve an event or activity which has a distinguished reputation, or is a comparable newly organized event, production or activity; or
    2. The services to be performed must be in a lead, starring, or critical role in an activity for an organization or establishment that has distinguished reputation, or record of employing extraordinary persons; or
    3. The services primarily involve a specific scientific or educational, project, conference, convention, lecture or exhibit sponsored by bone fide scientific or educational organization or establishment; or
    4. The services consist of a specific business project that is appropriate for an extraordinary executive, manager, or highly technical person due to the complexity of the business project.

    To establish that the alien has extraordinary ability in his/her field, the petition must be filed with documentation that demonstrates sustained national or international acclaim and recognition, or receipt of a major internationally-recognized award, such as a Nobel Peace Prize. The alien may also qualify as an individual of extraordinary ability by submitting at least three (3) of the following forms of documentation:

    1. Documentation of the receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
    2. Documentation of membership in associations in the field which require outstanding achievements as judged by recognized international experts;
    3. Published material in professional or trade publications or newsletters about the alien and his work in the field;
    4. Evidence that the alien has participated on a panel, or individually, as a judge of the work of others in the field or an allied field;
    5. Evidence of original scientific or scholarly research contributions of major significance in the field;
    6. Evidence of authorship of scholarly articles in the field in professional journals or other major media; or
    7. Evidence the alien commands a high salary or other high remuneration for services.

    To qualify as an alien of extraordinary achievement in the motion picture or television industry, or an alien of extraordinary ability in the field of arts, the alien must be recognized as having a record of extraordinary achievement as demonstrated by the following:

    1. Evidence that the alien has been nominated for or the recipient of significant national or international awards or prizes in the particular field such as an Academy Award, an Emmy, a Grammy, or a Director's Guild Award; or
    2. At least three of the following forms of documentation:

    1. Evidence that the alien has performed or will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidences by critical reviews, advertisements, publicity release, 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 newspaper, trade journals, magazines, or other publications;
    3. Evidence that the alien has performed in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publication, 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, credit for original research or product development, 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 filed in which the alien is engaged. Such testimonials must be in a form which clearly indicated that author's authority, expertise, and knowledge of the alien's achievement; or
    6. Evidence that the alien has commanded or now commands a high salary or other substantial remuneration for services in relation to others in the field, as evidence by contracts or other reliable evidence.

    Before the INS can approve an "O-1" visa petition, a written advisory opinion from an appropriate peer group, labor and/or management organization regarding the nature of the work to be done by the alien, and the alien's qualifications must be obtained. To facilitate INS's adjudication, the petitioner should obtain the written advisory opinion, and submit it to INS with the petition. The advisory opinion should set forth a statement of facts which supports the conclusion reached in the advisory opinion. It must be signed by an authorized official of the group or organization. In the case of an alien who will be employed in the fields of arts, entertainment, or athletics where the INS determines that the petition merits expeditious handling, the INS may obtain the advisory opinion telephonically.

  5. DURATION OF VISA
  6. An O-1 visa may be valid for the period necessary to accomplish the event or activity, but must not exceed three years.

  7. STATUS OF SPOUSE AND MINOR CHILDREN
THE O-2 VISA - ACCOMPANYING ALIENS

  1. WHO IS ELIGIBLE
  2. A foreign national who is coming to the United States temporarily for the purpose of accompanying and assisting in the athletic or artistic performance of an alien who has been granted an O-1 nonimmigrant visa may be granted an O-2 nonimmigrant visa. The O-2 visa applicant must have critical skills or experience with the principal alien, or be an integral part of the actual performance. In the case of an O-2 alien who will work in a motion picture or television production, he/she must have skills and experience with the O-1 alien which are not of a general nature, and which are critical, either based on a pre-existing and longstanding relationship, or because significant production will take place both inside and outside of the United States, and the continuing participation of the alien is essential to the successful completion of the production. The O-2 visa applicant must have a foreign residence that he/she has no intention of abandoning.

  3. HOW TO APPLY
  4. The employer may file a petition with the INS Regional Service Center having jurisdiction over where the job will be performed. If the job requires the alien to work in different locations, the petition must be filed with the INS Service Center that has jurisdiction in the area where the petitioner is located. If a foreign employer working through a U.S. agent files on behalf of the alien, the petition must be filed with the Service Center that has jurisdiction in the area where the alien will first work.

    Consultation with a labor organization with expertise in the alien's skill area is required for an O-2 alien accompanying an O-1 alien. In the case of an alien seeking entry for a motion picture or television production, consultation with a labor organization and a management organization is required. The opinion must describe the alien's essentiality to and working relationship with the O-1 alien. It must state whether there are available U.S. workers who can perform the support services. It must address the alien's skills and experience with the O-1 alien, and whether the alien has a pre-existing, longstanding working relationship with the O-1 alien, or whether significant production will take place in the U.S. and abroad, and if the continuing participation of the alien is essential to the success of the production.

  5. DURATION OF VISA
  6. An O-2 visa may be valid for the period necessary to accomplish the event or activity, but must not exceed three years.

  7. STATUS OF SPOUSE AND MINOR CHILDREN
  8. A spouse and unmarried minor children of an alien who holds an O-1 visa are eligible for O-3 visas. They may not accept employment while in the United States on an O-3 visa.

About The Author

Mark Ivener has been practicing law in Los Angeles for 30 years. He has lectured on U.S. immigration law for the World Trade Institute in New York, Houston, Chicago, and San Francisco. He has also lectured for the International Bar Association in Munich, Madrid, and New York. Mr. Ivener has participated in many immigration seminars for the Law Societies of British Columbia and Alberta and the American Immigration Lawyers Association.

He has authored the books, Handbook of Immigration Law, Volumes I and II [1980; 2nd edition, 1982; and 3rd edition, 1986; Online edition, 1999]; Doing Business in the U.S.A. Under Free Trade [1989; 2nd edition, 1990]; Get The Right Visa [1992; 2nd edition 1994]; A Complete Guide To Getting An American Visa (in Japanese) 1993; 2nd edition 1994; 3rd edition 1997]; and Have You Thought About Immigrating To The U.S.? (in Spanish) [1995]. He has also written many articles on immigration law which have appeared in the International Law Journal, the Canadian-American Bar Association Newsletter, Business and the Law and World Trade Trends.

Mr. Ivener is a founding member of IMMLAW, The National Consortium of Immigration Law Firms. Also, Mr. Ivener is listed in the Martindale-Hubbell Bar Register of Preeminent Lawyers.



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