Redefining The O-1 Visa Landscape
By The Staff of Immigration Law Associates
The O-1 "Extraordinary Ability" nonimmigrant visa has several different sub-categories, suitable for individuals in different occupational groups. As there have been some recent changes in O-1 adjudications policies and practices, we offer this updated review of the category.
This O-1 category is for those of extraordinary ability in the sciences, arts, education, business, or athletics or for those who have a demonstrated record of extraordinary achievement in motion picture and/or television productions. Although "arts" is grouped within the "extraordinary ability" list, in practice O-1 arts cases are much closer to motion picture or television O-1 cases than to O-1 science, business education or athletics cases. The difference turns on two points. First, O-1 beneficiaries in arts and television cases must meet similar criteria, different from those which must be satisfied in the four non-arts "extraordinary ability" cases. Second, the evidentiary standard is higher for the non-arts categories in the extraordinary ability list than for arts and motion picture/television cases.
In science, education, business or athletics O-1 cases beneficiaries must have risen to the very top of the field of endeavor. As with immigrant categories in recent years, adjudicators no longer give much weight to letters of support from experts in the field, preferring instead objective documentary evidence that was available prior to the filing of the case. Still, an advantage in O-1 cases may well be the general evidentiary standard in immigration law, "preponderance of evidence." The result, that it must be "more likely than not" that the beneficiary is qualified for the category. It can thus be very helpful to remind the adjudicator of the standard in the statement of the case.
Those seeking visas in the remaining two O-1 sub-categories (arts and motion picture/television) have several advantages. They need not have risen to the top of the field, but only to the level of being well-known or notable in it; by statute, testimonial letters from experts in the field satisfy one of the three necessary criteria; and the evidentiary standard "preponderance of evidence" is still applicable. However, new in these sub-categories is the requirement for an "agent for the purposes of immigration" in cases where the beneficiary wishes to be self-employed or employed by several organizations. Such an agent need not be in business as an agent or even paid for his or her services; however the beneficiary must obtain a signed letter from each confirmed employer stating the agent is acting on its behalf. Further, the agent must submit a "petitioner's letter," as the O-1 category does not allow the beneficiary to self-petition. The new rule makes for more paperwork and longer case preparation time, but so far not for an increased number of denials in these cases.
All O-1 petitioners are subject to the requirement for a "written advisory opinion" from an "appropriate consulting entity." This requirement is most applicable when, as with a musician, the beneficiary's occupation has a union or other bargaining representative which can approve the individual's credentials and experience. Otherwise, one may submit a letter from a "peer group" confirming the beneficiary's professional qualification. Even this can be difficult to locate; fortunately, adjudicators generally accept any reasonable evidence of professional competence if it is well-organized and clearly described.
The O-1 visa is a good alternate to an H-1B for accomplished professionals in areas outside the arts -- to the degree that one might well use an approval as evidence in a subsequent permanent residence case. For artists with some degree of success, the O-1 offers a very good chance of approval, as well as the flexibility to pursue varied and widespread career opportunities. Recent trends have not changed these basics, and we continue to have an excellent record of approvals for O-1 cases.