Giuseppe Scagliarini is an Immigration Attorney representing scientists, educators, business persons, actors, artists, and athletes to obtain the O-1 visa to move temporarily to the United States to work in their field of expertise.
The O-1 Visa category is a useful way to obtain nonimmigrant visas of up to three years of initial duration for individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.
The O-1 Visa is a nonimmigrant classification and is commonly broken down into several subcategories. While these categories of O visa are similar, they each have slightly different requirements and the services of a skilled O-1 Visa attorney are recommended.
O-1A Visa: for individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry)
O-1B Visa: for individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry
O-2 Visa: for individuals who will accompany an O-1 visa holder to assist in a specific event or performance. For an O-1A, the O-2’s assistance must be an “integral part” of the O-1A’s activity. For an O-1B, the O-2’s assistance must be “essential” to the completion of the O-1B’s production. The O-2 worker must have critical skills and experience with the O-1 that cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O-1 Visa Holder
O-3 Visa: for individuals who are the spouse or children of O-1’s and O-2’s
It is important to know that the Alien may not self-sponsor for an O-1 Visa. Normally, the petition must be filed by the O-1 Employer, by an O-1 Agent (which could then if certain requirements are met allow for multiple employers or venues), or in certain cases by an Employer-Agent. recently, restrictive trends have required extensive documentation for petitions filed by an Agent , see e.g. the November 20, 2009 Memo by Donald Neufeld on Requirements for Agents and Sponsors Filing as Petitioners in the O and P Visa Classifications
In general, to obtain an O-1 Visa the beneficiary must show “sustained national or international acclaim”, and must come to the United States to continue to work in the area of extraordinary ability.
The O-1 Visa category is deceptively similar to the EB-1 Immigrant Visa Preference Category. However, the requirements are applied in a less stringent way and is sometime possible to meet the requirement for a O-1 visa for a candidate that has achieved less than the very top of his or her field, especially for O-1 visa for artists where the appropriate standard is somewhat relaxed.
While extraordinary ability in the fields of science, education, business or athletics means “a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor“, in order to establish extraordinary ability in the filed of arts it is sufficient to demonstrate how the individual has achieved “distinction,” which, in turn, is defined 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“.
Extraordinary achievement in the field of motion picture and television productions means “a 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“.
In practice, it is often a lower threshold to obtain approval of an O-1 visa petition for artists and entertainers than it is in the other sub-categories.
Arts are defined broadly as “any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts.”
The regulations go onto explain that “aliens engaged in the field of arts include not only the principal creators and performers but other essential persons such as, but not limited to, directors, set designers, lighting designers, sound designers, choreographers, choreologists, conductors, orchestrators, coaches, arrangers, musical supervisors, costume designers, makeup artists, flight masters, stage technicians, and animal trainers“.
This long discussion does not make a lot of sense to the average O-1 Visa beneficiary unless you understand what kind of requirements you must meet and what evidence you must produce to win approval of an O-1 Visa petition. While there is no laundry list of documents, and sometimes a consultation from a peer organization or a labor union is required, the first step for the successful O-1 Visa petition is to correctly identify the area of expertise of the alien beneficiary, which could be:
a) Extraordinary Ability in Science, Education, Business or Athletics;
b) Extraordinary Ability in the Arts; or
c) Extraordinary Achievement in Television and Motion Picture.
Some of this categories overlap, some others are more clear-cut. For example, there has been in the past some confusion as to whether a ballroom dancer should be considered an alien of extraordinary ability in the field of arts or in the field of athletics.
Some other cases clearly fall in one of the categories, such as an O-1 visa for an actor who needs to work on a movie production. Even then, there is considerable room for interoperation as to who can be classified as an O-2 Visa as Supporting Personnel
Next, it is important to understand what standard the O-1 Visa applicant must meet: “sustained national or international acclaim,” or “a demonstrated record of extraordinary achievement”, which in turn has been interpreted differently and more leniently for the Arts than most of the other O-1 Visa categories.
The O-1 Visa Petition can be labor intensive and is becoming increasingly subject to scrutiny. For example, it is important to correctly define the “event” to which the O-1 Visa holder will participate in the United States. While this has been interpreted to allow for multiple venues or employers, it still needs to constitute a cohesive “event” and not a loose arrangement of unrelated events highly speculative and in the remote future.
Similarly, as explained before, the O-1 Visa Agent role has come under USCIS scrutiny and subject to stricter interpretation.
Last but not least, for O-1 actors in the Television and Motion Pictures, the requirement of consultations from BOTH a Union and a Management Organization is unavoidable and consequently the petition must be started with plenty of time in advance of the O-1 Actor’s required presence in the United States.
So what can someone interested in an O-1 visa do?
A good starting point is USCIS page on O-1 Visas. However, the services of an skilled immigration and visa lawyer are highly recommended in this field.
Giuseppe Scagliarini is a USA Immigration Attorney and can assist clients seeking to obtain O-1 Visa, O-2 Visas, and other artists, athletes, actors, entertainers and scientists of extraordinary ability or extraordinary avhievement who seek permanent or temporary visas to the United States of America. If you think you fit in any of these categories, or if you desire to seek a consultation to explore your option, please do not hesitate to contact us. We will be happy to put our experience at work for you!