The O-1 Nonimmigrant Visa: Varying Degrees Of Extraordinary Ability
Congress defines the class of nonimmigrant aliens who fall within the O-1 visa category as aliens who have “extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim or, with regard to motion picture and television productions a demonstrated record of extraordinary achievement”.1 This is identical to the language governing the first preference employment-based immigration category for “persons of extraordinary ability”(EB-1),2 which creates a highly demanding burden. As such, it is common to view the O-1 standard as insurmountable for most foreign nationals. However, the reduced documentation requirements promulgated by the Citizenship and Immigration Services’ (CIS) regulations make the O-1 visa an appealing category for artists and entertainers.
To establish their abilities as extraordinary for 0-1 purposes, scientists, educators, businesspersons and athletes must prove a level of expertise indicating that the alien is “one of the small percentage who have risen to the very top of [his or her] field.”3 As stated, supra, this same elevated standard is required for aliens attempting to immigrate to the United States under the first preference employment-based category. The regulations specify that an aliens’ extraordinary ability must be evidenced by receipt of a “major, internationally recognized award, such as the Nobel Prize.”4 Alternatively, the CIS accepts evidence of at least three (more than three would be advisable) of the following:
1. Internationally or nationally recognized prizes and awards in the specified field;
2. Membership in associations requiring exceptional achievement in the filed;
3. Published material in major or professional publications;
4. Participation as a judge of work of others in the field;
5. Significant original scientific, scholarly, or business-related contributions to the field;
6. Authorship of articles published in major or professional publications;
7. Current or previous employment in a major capacity for organizations with an established reputation in the field; or
8. Alien commands or has commanded a high salary.5
The stringent documentation requirements can be impossible to meet for a high number of successful professionals. As such, credentials and curriculum vitae should be closely scrutinized. In the majority of cases alternative visa options, such as the H-1B, L, or E-1, may be easier to file. However, scientists, educators, business persons and athletes fortunate enough to meet the “extraordinary ability” standard may in most circumstance also qualify for immigrant status under the employment-based first preference. All eight of the evidentiary prerequisites for the O-1 can be found in the ten regulatory criteria governing eligibility for the EB-1. 6 It may be prudent to apply for the first preference immigrant visa from the outset if an alien meets the prima facie standard. In fact, it may be easier to file an EB-1 because there is no labor union consultation requirement, discussed below. Also, an alien is permitted to self-petition for an EB-1, while an O-1 petition “may only be filed by a United States employer, a United States agent, or a foreign employer through a United States agent.”7
Artists and entertainers who qualify for the coveted O-1 visa do not necessarily meet the requirements of the first preference employment-based immigrant classification. This is due to a clearly different evidentiary standard of proof. The Immigration and Nationality Act provides a separate definition of extraordinary ability in the case of arts for O-1 purposes; namely that it means “distinction.”8 The regulations define distinction as “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.”9 An artist (includes any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts10 ) does not have to be at the very top of his or her field, but rather only substantially above that ordinarily encountered. Considering the difference in lexical definition of “very top”, as opposed to “substantially above”, clearly explains the favorable approval rate for artists and entertainers applying for the O-1 visa. The regulations also specify that extraordinary ability is proven with evidence of nomination or receipt (it should be noted that mere nomination by itself is insufficient for scientists, educators, businesspersons and athletes) of an significant international or national award or prize, such as an Academy Award, an Emmy, a Grammy, or Director’s Guild Award, or evidence of at least thee (more than three would be advisable) of the following:11
1. Alien has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation;
2. Alien has achieved national or international recognition for achievements evidenced by critical reviews or other published materials;
3. Alien has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation;
4. Alien has a record of major commercial or critically acclaimed successes;
5. 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; or
6. Alien commands or has commanded a high salary. 12
Yet another noteworthy aspect of the O-1 visa is that the CIS distinguishes between artists and entertainers on the one hand, and artists and entertainers in the television and motions picture industries on the other. Although still a much easier standard to meet than the scientist, educator, businessperson, and athlete standard, it places a higher burden compared to the non-television or motion picture industry artist. Artists in conjunction with the television or motion picture industry are classified as extraordinary if they achieve “very high level of accomplishment in the motion picture or television industry evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent that the person is recognized as outstanding, notable, or leading in the motion picture or television field.” 13 Not only must the alien’s achievement be very high, but the alien must also be recognized as outstanding or notable instead of merely renowned or well-known. Artists and entertainers in the television or motion picture industry thus fall in the middle of the O-1 spectrum, but can still obtain an O-1 visa even if they fall short of EB-1 requirements.
Additionally, artists and entertainers in the television and motion picture industry are required to submit the same kind of evidence as enumerated above. However, the CIS will not accept any “comparable” evidence in lieu of the stipulated list. Artists not in the television or motion picture industries, scientists, educators, businesspersons, and athletes may submit “comparable” evidence instead of or in addition to the listed requirements.14
Another component of the O-1 visa worthy of mention is the advisory opinion requirement.15 Essentially, this is a consultation from the appropriate labor union. If there is no union with a collective bargaining agreement, then any union with expertise in the field will suffice. Notable examples include the Screen Actors Guild and the Directors Guild of America. The letter may consist of either the union’s opinion of the alien’s qualifications or an affirmation that the union does not object. Here as well, artists in the television or motions picture industries must comply with an additional requirement. They also require a management consultation, which is usually drafted by the Alliance of Motion Picture and TV Producers.16 Although not considered binding by the CIS, a negative endorsement from the labor union or management organization could be very damaging to the petition.17
With all of the above in mind, the O-1 visa still remains one of the most desirable nonimmigrant categories, especially for artists and entertainers. The O-1 visa can be initially issued for up to three years. 18 As long as an alien continues to work in his or her field of extraordinary ability and has a willing petitioner in the United States (even if the petitioner is an agent of a foreign company), there is virtually no limit on the amount of times an alien can renew his or her visa, up to one year at a time.19 There is currently no cap on the amount of O-1 applicants who can be admitted. The consultation requirement is seldom difficult to meet provided that sufficient notice is given to the union or management organization. The O-1 is ideal for artists and entertainers who presently lack the qualifications to meet the stringent requirements for an EB-1, but would eventually like to immigrate to the United States. Aliens can elect to have their petitions adjudicated in less than fifteen days with a $1000 expedited processing fee. This serves to facilitate a significantly faster entry into the United States than would applying for an EB-1 directly, which can take several months to process. In addition, the section of the statute defining O-1 visas does not on its face require maintenance of a foreign residence which the alien does not intend to abandon, thus implying a dual intent.20 Beneficiary aliens can use their time in the United States in O-1 status to bolster their resume and expand their credentials before filing an employment-based immigrant petition. Once an alien can meet the evidentiary criteria for an EB-1, the I-140 and I-485 Petitions can be submitted at the same time. Although this lends to a longer waiting period for a decision, it avoids visa processing in a foreign consulate or embassy upon approval.
1 INA § 101(a)(15)(O)(i)(emphasis added).
2 INA § 203(b)(1).
3 8 CFR § 214.2(o)(3)(ii).
4 8 CFR § 214.2(o)(3)(iii)(A).
5 8 CFR § 214.2(o)(3)(iii)(B)
6 8 CFR § 204.5(h)(3).
7 8 CFR § 214.2(o)(2)(i).
8 INA § 101(a)(46).
9 8 CFR § 214.2(o)(3)(ii).
11 8 CFR § 214.2(o)(3)(iv)(A).
12 8 CFR § 214.2(o)(3)(iv)(B).
13 8 CFR § 214.2(o)(3)(ii)(emphasis added).
14 8 CFR § 214.2(o)(3)(iii)(C); 8 CFR § 214(o)(3)(iv)(C).
15 8 CFR § 214.2(o)(5).
16 8 CFR § 214.2(o)(5)(iii).
17 8 CFR § 214.2(o)(5)(i)(D).
18 8 CFR § 214.2(o)(6)(iii).
19 8 CFR § 214.2(o)(12)(ii).
20 INA § 101(a)(15)(O)(i).
About The Author
Mario A. Pacione is an intern at Cyrus D. Mehta & Associates, PLLC. He is currently a third year student at New York Law School, and anticipates graduating in the summer of 2004. Prior to enrolling in law school, he obtained his Bachelor of Arts degree in Political Science from the University of California, Los Angeles. This article was written under the supervision of Cyrus D. Mehta. Further inquiries to the firm can be made at (212) 425-0555 or firstname.lastname@example.org.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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