O Visa

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The O-1 visa is a short-term employment visa for persons of extraordinary ability in the arts and entertainment, athletics, sciences, business, education, or extraordinary achievement for those in the film and television industry who intend to enter the U.S. to perform specialized work. The Immigration and Nationality Act (INA) sets no annual limit on the number of people who can receive O visas.

Any artist, performer, entertainer, producer, or designer may apply for a full-time or part-time position if they meet the criteria for the visa.

Our firm has years of experience in submitting O-1 visa applications for various designers and artists and architects and architectural designers. We know that thorough preparation and attention to detail is the key to success. Some cases require more work than others. Our office will conduct an intensive review of your materials to determine eligibility and requirements.

This firm has successfully obtained O-1 visas for individuals in a wide array of fields, including:

Art Director;
Art Curator;
Illustrators;
University Professor;
Architectural Designer;
Architect;
Variety Entertainer/Drag Artist;
Translator/Editor/Writer;
Video Artist/Videographer;
Photographer;
Photojournalist;
Stage and Screen Actor;
Radio & TV Announcer;
Painter/Sculptor/Installation;
Multimedia Artist;
Musician/Composer/Songwriter;
Lighting/Sound Designer;
Set Designer;
Graphic Designer;
Motion Graphic Designer;
Animation Artist;
Illustrator;
Industrial/Product Designer;
Jewelry Designer;
DJ/Producer;
Fashion Designer;
Hair and Make-Up Artist;
Dancer, singer, and choreographer;
Model;
Decorative Artists;
Chefs and Culinary Artists.

Dates & Timelines of O-1 Visa

An individual applying for an O-1 visa may be admitted to the U.S for a maximum period of 3 years, plus a period of up to 10 days before the period begins and 10 days after the period ends. However, the individual may only engage in employment during the period specified in the approval notice.

The Standard of O-1 Visa

The O-1 category targets individuals who have a job offer in the U.S. and can show extraordinary ability and receipt of sustained national or international acclaim in the sciences, arts, education, business, or athletics.

There are 2 ways to meet the requirements for the O-1 Visa:

1) receipt of a significant, internationally recognized award (such as a Pulitzer or Nobel Prize); or

2) fulfillment of at least 3 of the criteria designated by USCIS.

The Arts Definition in O-1 Visa

The arts include “any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts. 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, chronologists, conductors, orchestrators, coaches, arrangers, musical supervisors, costume designers, makeup artists, flight masters, stage technicians, and animal trainers.”

(See 8 C.F.R. § 214.2(o)(3)(ii).)

Qualification Criteria for an O-1 Visa

The O-1 visa category is separated into two groups:

1) O-1A for the sciences, athletics, and business;

2) O-1B for artists and individuals in the Motion picture or TV industry.

While the standard of “extraordinary ability” applies to both, the definition of “extraordinary ability” is slightly different for each group.

Those in the arts must show “distinction” in their chosen fields, namely that they are prominent in their field and have achieved a degree of skill and recognition over and above the general level.

Those in the film and television industry are held to a higher standard than those in the arts, although the same criteria are used. They must show a history of “extraordinary achievement” rather than mere “distinction.”

In both groups, the applicant must show evidence of being nominated for, or being the recipient of, a significant national or international award, OR meet at least three of the following criteria:

O-1A

Science, Business and Athletics

Has received a nationally or internationally recognized award;
Holds membership in an organization that requires outstanding achievement;
Published materials about the applicant in professional or trade publications;
Has served as a judge of the work of others;
Has produced original scientific or scholarly work of major significance in the field;
Is the author of scholarly work in professional journals or major media;
Has been employed in a critical role by an entity with a distinguished reputation;
Has received or will receive a high salary or other outstanding remuneration for your services.

O-1B

Artists and individuals in the Motion picture or TV industry

Has performed a leading or critical role in productions or events having a distinguished reputation;
Has received critical reviews in newspapers, magazines, or trade journals;
Has performed a leading or critical role for organizations with a distinguished reputation;
Has a record of major commercial or critically-acclaimed success;
Has received significant recognition from organizations, critics, government agencies, or other recognized experts in the field;
Has commanded or will command a high salary;
Comparable evidence may be submitted where the above categories do not apply.

Although an artist may not qualify for the O-1 criteria, there are alternative approaches that may work. It is advisable to have an immigration expert review your background and materials.

O-2 Visa

O-2 visas are available for those accompanying the principal O-1 visa holder if their work is an integral part of the main visa holder’s performance or artistic endeavors. In addition, they possess critical skills and experience that are not of a general nature and cannot be performed by other individuals.

The O Visa Process

Forms

The sponsor/petitioner must file a petition with the United States Immigration and Customs Services to determine the applicant’s eligibility for O-1 or O-2 classification before the alien may apply for a visa or seek admission to the United States. The O-1 petitioner must file Form I-129, Petition for Nonimmigrant Worker, with the USCIS office listed on the form instructions. Note that Failure to complete Form I-129 correctly may result in rejection by USCIS or an inability for USCIS to define the admission validity period.

Evidence

An O-1 candidate must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability by providing extensive documentation as evidence. “An O-1 petition must be accompanied by evidence that the work which the alien is coming to the United States to continue is in the area of extraordinary ability, and that the alien meets the [relevant] criteria[.]” 8 C.F.R. § 214.2(o)(3)(i). The decision of USCIS in a specific case depends upon the quality rather than the quantity of the evidence submitted. An applicant must submit all required initial evidence and all the supporting documentation with their petition at the time of filing.

Agent/Employer as Petitioner/Sponsor

The O-1 visa is the perfect visa for visual and performing artists, designers, and consultants who usually do not have full-time permanent positions but rather work for multiple employers on short or long-term projects or ongoing temporary assignments.

The regulations provide that such individuals may use the services of a US agent and do not require a full-time permanent position or employer. Rather, they may have an agent sponsoring them. 8 CFR 214.2(0)(2) (iv)(E) provides that a “United States agent may be: the actual employer of the beneficiary; the representative of both the employer and the beneficiary; or a person or entity authorized by the employer to act for, or in place of, the employer as its agent.”

In the context of O-1 petitions, the agent’s role is complex because beneficiaries will frequently be engaged for employment in the U.S. by an agent but work under one or more contracts with third parties—typically performance venues.

Our office works with different entities offering agents for the limited purpose of filing the O-1 visa.

Deal Memos and Contracts for O-1 Visa

A minimum and basic requirement for the O-1 visa is a job offer from a U.S. employer. In some cases, the law requires that an O-1 petition include the contracts between the beneficiary and the entities that will ultimately use the beneficiary’s services.

However, in some cases, these third-party contracts are not required. When an agent is performing the function of the employer, the petition must provide the contractual agreement between the agent and the beneficiary which specifies the wage offered and the other terms and conditions of employment. In the case of a petition filed by an agent performing the function of an employer, a contract is not required between the beneficiary and the entities that will ultimately use the beneficiary’s services. Therefore, the question of whether or not the petition must include contracts between the beneficiary and the employing entities that will ultimately use the beneficiary’s services turns on whether the beneficiary’s agent is performing the function of an employer.

USCIS will accept either a written or an oral contract. The contract must demonstrate what was offered by the employer and what was accepted by the employee. If an oral contract was entered into, the document evidencing the oral contract does not have to be signed by both parties to establish that there is an oral agreement. However, it must document the terms of the employment offered and that the beneficiary has agreed to the offer. Such evidence may include but is not limited to:

E-mails between the contractual parties

A written summation of the terms of the agreement

Any other evidence which demonstrates that an oral agreement was created

Costs of Filing and Application for O-1 Visa

Costs that may be payable to the United States Government for an O visa include:

(1) USCIS Form I-129 ($460.00);

(2) USCIS Premium Processing (if applicable): ($2,500.00); and

(3) Department of State (in case applicant is outside the U.S.: ($190.00).

There are additional costs related to acquiring a consultation letter from an appropriate U.S. peer group (which could include a person or persons with expertise in the field), labor, and/or management organization. For example, the American Federation of Musicians, one of the largest union of musicians in the world, states on its website:

For O-1B, P-1B, and P-3 visas, the administrative processing fee for each consultation letter is: $250 for normal processing time (5 to 10 business days) or $350 for expedited service (two business days) or $550 for super-expedited service.

American Federation of Musicians

Translations for O-1 Application

Any translations used in filing an application for an O visa must be certified by a translator who certifies that the English language translation is complete and accurate and that the translator is competent to translate from the foreign language into English.

Consultation Requirements for an O-1 and O-2 Applicant

One mandatory document to apply for O-1 and O-2 visa is a Consultation letter with an appropriate U.S. peer group (which could include a person or persons with expertise in the field), labor and/or management organization regarding the nature of the work to be done and the applicant’s qualifications. “In the case of an applicant who will be working on a motion picture or television production, consultation shall be made with the appropriate union representing the alien’s occupational peers and a management organization in the area of the alien’s ability. If an advisory opinion is not favorable to the petitioner, the advisory opinion must set forth a specific statement of facts that supports the conclusion reached in the opinion. If the advisory opinion is favorable to the petitioner, the written advisory opinion from the labor and management organizations should describe the alien’s achievements in the motion picture or television field and state whether the position requires the services of an alien of extraordinary achievement. If a consulting organization has no objection to the approval of the petition, the organization may submit a letter of no objection in lieu of the above.” 8 C.F.R. § 214.2(o)(5)(iii).

O-1 Visa Premium Processing Option

Under premium processing, USCIS will make a decision in 15 calendar days. However, there is an additional $2500 filing fee for selecting this option. This service does not increase your chances of having your petition approved. It only decreases the amount of time it takes for the USCIS to come to a decision.

What to expect after filing the O-1 petition

After filing the O-1 application, USCIS may issue a request for evidence (RFE), or approve it without an RFE, which is what we aim for in all of our cases. RFEs are very common in these types of cases, and applicants should not be deterred if received such. If USCIS issues an RFE or a Notice of Intent to Deny (NOID), the applicant will have 90 or 30 days respectively to respond. It is wise to use as much time to prepare a response and legal arguments. Once the applicant submits the response to the RFE/NOID, it can take USCIS several months to make a final decision. However, if the filing was done through Primum Processing, the clock restarts and USCIS will make a decision within 15 calendar days.

Change of Status

As with most nonimmigrant visas, a non-citizen in the U.S. in valid nonimmigrant status, such as B or F, may file for a change of status to O-1 without leaving the country. Alternatively, the alien may choose to return to his or her home country in order to receive an O-1 visa stamp in his or her passport at the U.S. Consulate.

Concurrent O-1 visas

Note that is it possible to have concurrent O-1 visas. This can happen where the visa holder is already working for one employer on an O-1 visa and wishes to accept a second part-time position or to work through an agent on occasional temporary assignments. In such a situation, the agent would file for a second O-1 visa and the foreign national would then be authorized to work for two separate employers.

Spouses and children of O-1 visa holders are granted O-3 visas

The spouse and unmarried minor children (below 21 years of age) of the O-1 or O-2 non-citizen beneficiary are entitled to O-3 nonimmigrant classification, subject to the same period of admission and limitations as the non-citizen beneficiary if they are accompanying or following to join the alien beneficiary in the United States.

No Employment: Neither the spouse nor a child of the alien beneficiary may accept employment unless he or she has been granted employment authorization. 8 C.F.R. § 214.2(o)(6)(iv).

An O-3 Applicant must provide sufficient evidence to prove the relationship with the principal O-1 visa applicant/holder. This can be done through certificate of marriage or birth certificate for the children. Also, they must prove that they are not inadmissible based on health grounds or criminal history.

There are two filing processes possible for an O-1 visa spouse depending on whether applying from in or outside the U.S. If in the U.S., one needs to submit an I-539 to the USCIS. If from overseas, one will go through consular processing at the U.S. embassy or consulate in their home country before applying for O-3 admission at a port of entry.