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O-Visa Extraordinary Ability Workers

Extraordinary Ability WorkersThe O-Visa Nonimmigrant Visa grants temporary admission to an alien of extraordinary abilities. This visa is an attractive option for aliens that may not qualify for an EB-1A Immigrant Visa or for aliens that only seek to work in the United States for a shorter period of time. An employer seeking to bring in an alien under an O-Visa should file its petition no more than one year before it plans to employ the alien, but no less than 45 days before that date.

O-Visas cover three general classes of aliens that seek temporary admission to the United States. First, O-1 Visas are extended to the alien of extraordinary abilities in two separate instances. O-1A Visas cover aliens that have extraordinary ability in the sciences, arts, education, business or athletics, while O-1B Visas are specifically available to aliens that have demonstrated a record of extraordinary achievement in motion picture or TV production. To obtain an O-1A or O-1B Visa, the alien’s employer must file a Form I-129 Petition for a Nonimmigrant Worker on the alien’s behalf. This petition must demonstrate, through affidavits by employers and experts, contracts, awards, advisory opinions and other documentary evidence, that the alien possesses a level of skill or achievement in his or her field that is of national or international repute. The Regulations state that the alien either must show the receipt of an internationally recognized award (think the Noble Prize), or be able to satisfy three out of eight criteria it lists to establish such skill. These criteria are generally the same for O-1A and O-1B Visa holders, although the latter are held to a higher standard. However, unlike other employment-based nonimmigrant visas, the O-1 Visa does not mandate the petitioning employer requires an employee of extraordinary abilities to fill the position the alien seeks. Instead, the petitioning employer must show that the alien’s abilities, skill, or achievements place the alien in the upper echelon of his or her profession and that the alien will continue to work in his or her field while in the United States. Additionally, O-1 Visa holders may have the dual intent to immigrate to the United States, and the number of available O-1 Visas in unlimited. If granted, the O-1 Visa will last three years, and may be extended in one-year increments. Lastly, if the O-1 Visa holder changes employers, the new employer will have to file a Form I-129 Petition.

Second, the O-2 Visa covers aliens that seek temporary admission to the United States in order to accompany or assist the O-1 Visa holder in the performance of a specific event or series of events. Examples of such events are scientific projects, conferences, lectures, touts, conventions, exhibits, business project, academic year, or engagement. A series of such events constitutes a single event for the purposes of applying for an O-2 Visa. To establish eligibility for an O-2 Visa, the petitioning employer must file a separate petition that demonstrates that the alien for whom it seeks the O-2 Visa: (1) is an integral part of the actual performance; (2) has critical skills and experience with the O-1 Visa holder, which are of a general nature and could not be performed by anyone; and (3) that the alien has nonimmigrant intent, which means the alien has a home in his or her country of residence that he or she does not intend to abandon. As O-2 Visa holders’ permission to be and work in the United States is contingent upon their services to the O-1 Visa holder, an O-2 Visa holder may not change employers unless his or her O-1 Visa holder changes employers.

Third, O-3 Visas are available to the spouses and children of O-1 and O-2 Visa holders that are accompanying them or following to join them. The definitions of spouse and children are the same as in other immigration contexts.