O-1 Visa Lawyer
Extraordinary Ability O1 Visa
The O1 Visa is for foreign workers of Extraordinary Ability in the fields of Science, Business, Arts and Athletics that are coming to the United States to render their services on a temporary basis for a U.S. Company or agent.
The O1 Visa is the most desirable temporary U.S. work Visa available because:
- It is not subject to annual caps, like the H-1B Visa;
- No set level of education is required;
- There is no minimum wage requirement;
- There is no Labor Certification requirement;
- It can be used by J-1 Visa holders to waive the 2-year residency requirement.
O Visa Requirements
First, the O-1 Visa requires an offer of employment from a U.S. company.
There are two kind of O-1 Visa: the O1A and the O1B.
The O-1A Visa is for workers of extraordinary ability in the fields of Science, Education, Business or Athletics.
A petition for an O-1A Visa must include evidence that the beneficiary has received a major, internationally-recognized award, or evidence of at least three of the following criteria:
- Receipt of nationally or internationally recognized prizes or awards for excellence in the field;
- Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by well-known national or international authorities in the field;
- Published material in professional or major trade publications, newspapers or other major media about the beneficiary or the work of the beneficiary;
- Original scientific, scholarly, or business-related contributions of major importance and recognition in the field;
- Authorship of academic articles in professional journals or other major media;
- A high salary or other compensation for services rendered;
- Participation on a panel, or individually, as a judge of the work of others in the same field of specialization for which classification is sought;
- Employment in a critical or essential capacity for Companies and organizations that have a distinguished reputation.
O1B Visa Requirements
The O-1B Visa is for workers of extraordinary ability in the field of Arts. The O-1B classification can be granted for many types of job. The USCIS regulations state that the O1B Visa is for “any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts”.
An O-1B Visa petition must include evidence that the beneficiary has received, or been nominated for, significant national or international awards (like the Nobel Prize) or prizes in the particular field, or evidence of at least three of the following criteria:
- Performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation;
- Achieved national or international acclaim, as shown by published materials by or about the beneficiary in major newspapers, magazines, or other publications;
- Performed and will perform in a lead, principal, or critical role for Companies and organizations that have a distinguished reputation;
- A record of major commercial success, as shown by box office receipts, motion picture or television ratings reported in trade journals, major newspapers or other publications;
- Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the beneficiary is engaged;
- A high salary or other substantial compensation for services in relation to others in the field.
Standard for Professional Publications
In Russell v. I.N.S., No. 98 C 6132, 2001 WL 11055 (N.D. Ill. Jan. 4, 2001) the District Court rejected INS’s position that articles from Chicago newspapers did not demonstrate that Russell had “major media” attention because the newspapers were not national media. The Court noted: “Nowhere in the relevant language of the INS regulation is there a requirement that the submitted media publications be from news outlets throughout the country”.
Thus, USCIS should focus on the circulation of the publication, of the editorial influence of the media source, rather than solely whether the publication is national in scope.
Further, there is no requirement that published material be primarily about the beneficiary and the beneficiary’s work. In Muni v. I.N.S., 891 F. Supp. 440 (N.D. Ill. 1995), the Court held that “published material about [Muni] in professional or major trade publications or other major media, relating to [his] work in the field for which classification is sought” was sufficient to satisfy this criterion. The Court noted that the “articles do not establish that Muni is one of the stars… but that is not the applicable standard”.
Instead, the court found that “the articles Muni submitted, which appeared in various newspapers and hockey magazines, clearly fit the requirement”.
A similar holding was set in Racine v. INS, 1995 U.S. Dist. LEXIS 4336 at 17, 1995 WL 153319 at 6 (N.D. III 1995). There, the Court found that “INS was not following its own regulations when it held that there are no articles which state that Racine is ‘one of the best in the field'”. Like the Court in Muni, Racine held that “articles [that] … demonstrate his work within his field” were sufficient to meet this criterion.
Importance of Expert Letters
While expert letters by themselves are not conclusive evidence of extraordinary ability, such letters often summarize and explain the documentary evidence submitted. Unchallenged testimony cannot be rejected outright. Banks v. Gonzales, 453 F.3d 449, 453-54 (7th Cir. 2006). The determination of the credibility of documentary evidence should be the same as the determination of the credibility of testimony and therefore, an adverse decision must be based on “specific, cogent reasons that bear legitimate nexus to the finding” Zahedi v. INS, 222 F.3d 1157, 1165 (9th Cir. 2000).
In other words, an expert letter may not be dismissed without a specific, cogent reason for finding that it is not credible evidence in support of the petition.
USCIS has a long history of accepting expert letter as evidence. A number of non-precedent AAO decisions confirm this trend. See, e.g., Matter of [name not provided], 1997 WL 33171069 (AAO 1997); Matter of [name not provided], AAU LIN 95 08951447, 1997 WL 33171273 (AAO 1997).
In addition, the Court in Buletini v. I.N.S., 860 F. Supp. 1222 (E.D. Mich. 1994) held that expert statements respecting the petitioner’s contributions must be fully considered, even if the expert opinions came from people who knew or had worked with the beneficiary.
Similarly, the Court in Muni v. I.N.S. found that dismissal of expert letters without full consideration was “clear evidence that [the INS] did not adequately evaluate the facts before it. See also Racine v. INS, 1995 U.S. Dist. LEXIS 4336, 1995 WL 153319 (N.D. III Feb. 16, 1995).
Failure to consider expert testimony and/or affidavits is a violation of Due Process. Tun v. Gonzales, 485 F.3d 1014 (8th Cir. 2007); Rodriguez Galicia v. Gonzales, 422 F.3d 529, 538-40 (7th Cir. 2005); Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1056-58 (9th Cir. 2005); McDonalds v. Gonzales, 400 F.3d 684, 687-88 (9th Cir. 2005).
O1 Visa to EB1 Green Card
The O1 is a non-immigrant Visa allowing his holder to seek permanent residence in the United States. There is also a potential direct path to a Green Card from O-1 classification, through the EB1 Visa for Extraordinary Ability.
The spouses and minor children of O1A and O1B Visa holders can come to the U.S. as dependents on O-3 classification.
Assistants of O1 Visa Holders
Are you an assistant to someone of “extraordinary ability” or talent who is looking to enter the U.S. on an O1 visa? If their work requires your presence and assistance, then you may be eligible to receive an O2 visa to enter the United States as a nonimmigrant.
In order to be granted an O2 visa, an individual must meet evidential criteria. He or she must be able to prove to have the skills, knowledge, or familiarity essential to the activities and work of the O1 visa holder. The applicant must also be able to prove that their work cannot be performed by a comparable American worker.
The O2 Visa Process
Your U.S. employer must file a petition with the USCIS for the O-2 visa. The petition must be filed in conjunction with the O1 visa holder. Applicant should try to file within 45 days before the date of employment, in order to avoid delays. The petition is filed with form I-129, Petition for Nonimmigrant Worker. The applicant may not petition more than 6 months before he or she begins employment.
O visa petitioners must have the consultation of a valid labor organization or management organization according to the O1 visa holder’s extraordinary skill or ability. Assistants or support staff for athletes, athletic teams, or individuals with extraordinary achievement in motion pictures or TV must have the consultation from an appropriate labor organization. An immigration lawyer from our firm can help you find out what organization or company you need to work with regarding this matter
Contact an Immigration Attorney
As a New York Immigration Attorney, I have helped many people get the O1 Visa for Extraordinary Ability, such as Chefs, professional Ballroom Dancers, and Artists. Please take the time to read the testimonials of former clients of my law firm.
I offer a free initial assessment for O1 Visa candidates. Please send me an email with your current résumé.
Contact my office today for more information on the O1 Extraordinary Ability Visa.