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THE O-1 VISA:
A MISUNDERSTOOD CATEGORY
by Jeffrey Ehrenpreis
The O-1 temporary work visa for persons who are extraordinary in their field, and which is most commonly utilized for persons in the entertainment industry and the arts, is subject to many misconceptions. The list of questions and answers below highlights the most frequently misunderstood aspects of O-1 visas.
1. Is the O-1 visa only for persons in the arts and entertainment industry?
No. The O-1 statute specifically includes persons in the sciences, arts, education, business, or athletics. The Immigration Service interprets the statute to encompass persons in all fields of endeavor, such as outstanding chefs and designers.
2. How does the Immigration Service define extraordinary?
Although variations exist in the definition of extraordinary depending upon the person’s field of endeavor, the general requirement is that the person has a degree of ability and sustained recognition significantly above that ordinarily encountered, so that the person has reached the top of his or her field. The standard utilized to determine an individual’s extraordinary ability is subjective, rather than objective, with success in obtaining an O-1 depending, in part, upon the exercise of judgment by an immigration examiner. Therefore, the skill with which the O-1 case is prepared plays an important role in determining its success.
3. How does a person prove he or she is sufficiently extraordinary to qualify?
The Immigration Service lists specific types of evidence which the person can submit to establish that he or she qualifies for O-1 status. These materials include evidence of recognized awards or honors, membership in organizations that require outstanding achievement, published materials about the individual, authorship of scholarly work, employment in a critical capacity by an organization with a distinguished reputation, a record of major commercially or critically acclaimed successes, or performing in lead or starring roles. Testimonial letters by persons in the field are typically not enough to show extraordinary achievement without additional objective, independent evidence of impressive accomplishments, such as awards or press.
4. Is a job offer, especially by a major employer in the field, such as one of the film studios, sufficient to qualify the person for O-1 status?
No. A person must have both (i) a sponsoring employer; and (ii) documentation establishing that he or she is extraordinary in the field. In addition, there must be at least one contract or deal memo signed by the employer and an itinerary listing the projects and dates of the employment.
5. Can the sponsor be an agency?
So long as the sponsor is in fact a recognized agency, the agency can serve as the O-1 sponsor. However, agency sponsorship still requires proof of at least one underlying contract for specific employment with an employer other than the agency and an itinerary listing the projects on which the person will work.
6. What are the advantages of having an agency as the O-1 sponsor?
If the person has more than one contract to work with different employers in the United States, then an agency sponsored O-1 petition can include those contracts to obtain permission for the individual to work for those different employers. This is what is commonly referred to as an “umbrella O-1.”
7. Are all O-1 visas granted for three years?
An O-1 will only be granted for as long as the applicant is able to evidence specific projects in the U.S., not to exceed an initial maximum period of three years. This is true even for an agency sponsored O-1.
8. Can the O-1 person bring support personnel to work in the U.S.?
An essential support person who either (i) has had a longstanding working relationship with the O-1 individual; or (ii) has already started working outside of the U.S. with the O-1 individual on a specific project that will continue in the U.S., can apply for an O-2 visa to accompany the O-1 person to the U.S. Some examples include a pianist who accompanies a vocalist or an Assistant Film Director who accompanies a Director to the U.S.
For any questions regarding qualifying for an O-1 visa, please contact the undersigned.
Ehrenpreis Immigration Law
1880 Century Park East, Suite 550
Los Angeles, CA 90067
Phone: (310) 553-6600
This newsletter is intended for informational purposes only and should not be considered legal advice or to have created an attorney-client relationship. For legal advice, please contact our office directly.