O-1 Extraordinary Ability or Achievement

What is the O-1 visa? The O-1 visa is a non-immigrant employment-based visa classification for foreign nationals who can demonstrate the sustained national or international acclaim and recognition for achievements in the science, education, business or athletics. It requires the employer file a Petition for a Nonimmigrant Worker (Form I-129), along with evidence of the individual's extraordinary ability. The "extraordinary ability in the field of science, education, business, or athletics means a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor."

Qualifying for the O-1 Visa Under federal law there are three different standards for the O-1 category:  the most exacting standard applies to those individuals in the sciences, education, business and athletics;  a much less rigorous standard applies to individuals in the arts;  an intermediate standard applies to individuals in the motion picture or TV industries.  The O-1 visa category is reserved for those individuals who have risen to the very top of their fields of endeavor and can provide documentary evidence to substantiate this claim.

Employment is position, employer, and date specific: O-1 visa classification is granted by the USCIS. The employer must submit a petition that is employer and position specific to USCIS on behalf of the employee. The foreign national granted O-1 visa classification will be authorized by USCIS to be employed only by the employer that submitted the O-1 application and only for the time period and the position, event or activity for which the USCIS granted approval. The employee may not commence employment prior to the date authorized by USCIS and must terminate employment no later than the date authorized.

Working for another employer If the O-1 foreign worker wishes to change her/his employer, the new employer must file another O-1 petition and is not permitted to employ the foreign worker until it has received approval from USCIS for its O-1 application. If the individual works for more than one employer at the same time, each employer must file a separate petition with the USCIS.

Duration of O-1 Visa Classification There is no statutory limit on the period of time an individual may remain in the U.S. in O-1 visa status. However, the initial authorized period of stay will not be approved for more than three years. Extensions of stay, in one year increments, can be granted as long as the individual is continuing in the same position or activity for which they were originally granted O-1 status.

J-1 Two Year Foreign Residence Requirement The J-1 may be subject to the requirement and still apply for the O-1 visa outside the US. According to USCIS correspondence, a J-1 nonimmigrant in valid status who qualifies as an individual of extraordinary ability "may (1) have an O-1 nonimmigrant visa petition approved on his or her behalf and (2) proceed abroad and apply for and receive from the State Department an O-1 visa, without first having to fulfill the two-year foreign residence requirement or obtain a waiver thereof."

Obtaining O-1 Status Departments willing to sponsor an employee for O-1 status should consult with a qualified immigration attorney. The attorney will need to work with Martyn Miller in ISSS for the I-129 signatures. ISSS maintains a list of attorneys who have been referred to our office [