• O Visas
  • November 5, 2015 | Author: Alexander Joseph Segal
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
  • Overview of O Visas

    O visas are nonimmigrant employment visas for limited classes of aliens. The O-1A (O1A) visa is for “aliens of extraordinary ability” who are seeking to enter the United States to work in their areas of expertise. The O-1B visa (O1B) is for an alien of “extraordinary achievement” in motion picture or television productions who is seeking to enter to work in his or her area of extraordinary achievement. There is an O-2 (O2) visa for an alien who is seeing to accompany and assist and O1A or O1B visa holder. Finally, the spouse or child(ren) of an O1 or O2 visa holder are eligible for derivative O-3 (O3) visas. This article will provide a brief overview of the different visas in the O visa category.

    Rules for O Visa Petitioners


    An alien seeking to enter with an O1 or O2 visa cannot self-petition, and must have a U.S. employer, foreign employer through a U.S. agent, or U.S. agent in what would be a traditionally self-employment situation file a petition on his or her behalf.[1]
     
    It is important to note that the first preference EB1-A immigrant visa category is for “aliens of extraordinary ability” and has similar documentary requirements to the nonimmigrant O1 categories. Unlike its nonimmigrant cousin, the EB1-A category allows for self-petitioning and does not require the visa applicant to have an offer of employment.

    O1A Visas


    The O1A visa is for an alien who possesses “extraordinary ability” in the sciences, arts, education, business, or athletics.[2] The extraordinary ability must have been demonstrated by “sustained national or international” acclaim.[3] In order to obtain an O1A visa, the alien must be seeking to enter the United States to work in his or her area of expertise.

    The most complicated aspect of the O1A visa petition is demonstrating “extraordinary ability” in one of the listed fields. The minimum evidentiary requirements for demonstrating extraordinary ability are substantial, and an O1A petition must be carefully constructed in order to demonstrate extraordinary ability. The evidentiary requirements for demonstrating extraordinary ability in science, education, business, or athletics are slightly different than for demonstrating extraordinary ability in the arts. In order to learn about the evidentiary requirements in detail.[4]

    In addition, with limited exceptions, the petition must include a consultation with a U.S. peer group in the alien’s area of expertise that will take the form of an advisory opinion.[5] One exception is if United States Citizenship and Immigration Services (USCIS) concludes that there is no trade organization in the alien’s field to provide an advisory opinion.[6]

    O1B Visas


    The O1B visa is for an alien of extraordinary achievement in motion picture or television productions.[7] The extraordinary achievement must have been recognized in the field through extensive documentation.[8] The alien must be seeking entry to work in his or her area of extraordinary achievement.

    As with the O1A category, the most complicated aspect of an O1B petition is satisfying the extensive evidentiary requirements to demonstrate “extraordinary achievement.” The minimum threshold requirements are found in regulations.[9] In order to read about the requirements in detail, please follow this link and then scroll down to the “O1B Visa” header.

    The O1B visa category also contains a consultation requirement. The consultation shall be made with the union representing the alien’s occupational peers, and with the management organization in the area of the alien’s extraordinary achievement.[10] The consulting organization has the option of issuing a letter of no objection in lieu of an advisory opinion if it has no objection to the approval of the petition.

    O2 Visas


    O2 visas are available for aliens who are seeking entry into the United States in order to accompany and assist an O1A or O1B employee.

    In order to accompany and assist an O1A employee, an O2 must be:
    • seeking to enter the United States temporarily and solely to accompany and assist in artistic or athletic performances for a specific event or specific events;[11]
    • an integral part of the performance he or she seeks entry to assist in;[12]
    • in possession of critical skills and experience with the O1A employee which are not general and cannot be performed by other individuals.[13]
    The first of the three requirements on the above list is also applicable to O2s seeking entry to accompany and assist O1B employees. In addition, there are specific statutory requirements for an O2 seeking to accompany and assist an O1B:
    • He or she must possess skills and experience with the O1B employee that are not of a general nature; and
    • are critical based upon a pre-existing long-standing working relationship with the O1B; or
    • with respect to the specific production.[14]
    In addition, an O2 applicant must demonstrate that he or she has a foreign residence which he or she has no intention of abandoning.[15]

    While the evidentiary requirements for the O2 category are far less substantial than the O1 categories, there is a consultation requirement for O2 petitions.[16] A favorable advisory opinion for an O2 seeking to accompany and assist an O1A should attest to the working relationship between the O2 and the O1A and that there are no available U.S. workers for the job. A favorable advisory opinion for an O2 seeking to accompany an O1B should be with the labor organization and management organization involved, and should demonstrate that the alien meets the requirements for O2 status with regard to the specific production.

    O3 Visas

    A spouse or child of an O1 or O2 employee is eligible for a derivative O3 visa to accompany the principal.[17] The period of admission for an O3 is the same as for the principal. O3 visas do not authorize employment, but an O3 visa-holder may apply for employment authorization while on O3 status.[18]

    Application Process and Admission

    An O visa petition is filed on a Form I-129. It may not be filed more than one year before the proposed employment is set to begin for an O1 petition.[19] It should be filed at least 45 days before the intended employment is set to begin for an O2 petition.[20] O1 and O2 petitions must be filed separately.

    An O visa petition may be approved for the time deemed necessary for the event or activity that the applicant is seeking entry for, but the initial period of approval may not exceed 3 years.[21] If an extension is required, the petitioner may file a new Form I-129. Extensions may be approved in 1-year increments.[22]

    If there is a substantial change in employment, the petitioner must file an amended Form I-129.[23] This is because an O1 or O2 employee is only authorized to engage in the employment that the petition was approved for. If an O1 employee seeks to change employers, the new employer must file a Form I-129 along with a request for an extension of stay.[24] O2 employees may only change employers in conjunction with the principal.

    The O1 visa categories recognize dual intent. If an O1 visa applicant already has an approved labor certification for an immigrant employment visa, this will not weigh against an O1 visa petition.[25]

    Advice

    The O visa category is an appealing immigration option for aliens who can meet the rigorous requirements because, unlike the H-1B visa, there is no cap on the number of O visas that may be approved. However, due to the very complicated application process, an O visa petitioner and applicant should consult with an experienced immigration attorney in order to determine whether the O visa category is appropriate. If it is, an experienced immigration attorney will be indispensable in helping the petitioner and alien meet the extensive evidentiary requirements for an O visa.


    1. 8 C.F.R. § 214.2(o)(2)(i)
    2. INA § 101(a)(15)(O)(i)
    3. Id.
    4. Also see 8 C.F.R. § 214.2(o)(3)(iii)
    5. 8 C.F.R. § 214.2(o)(5)(i)(A)
    6. 8 C.F.R. § 214.2(o)(5)(i)(G)
    7. INA § 101(a)(15)(O)(i)
    8. Id.
    9. 8 C.F.R. 214.2(o)(3)(iv)
    10. 8 C.F.R. § 214.2(o)(5)(i)
    11. INA § 101(a)(15)(O)(ii)(I)
    12. INA § 101(a)(15)(O)(ii)(II)
    13. INA § 101(a)(15)(O)(ii)(III)(a)
    14. INA §101(a)(15)(O)(ii)(III)(b)
    15. INA §101(a)(15)(O)(ii)(IV)
    16. 8 C.F.R. 214.2(o)(5)(iii)
    17. INA § 101(a)(15)(O)(iii)
    18. 8 C.F.R. 214.2(o)(6)(iv)
    19. 8 C.F.R. § 214.2(o)(2)(iii)(C)
    20. Id.
    21. 8 C.F.R. § 214.2(o)(6)(iii)(A) and (B)
    22. 8 C.F.R. § 214.2(o)(12)(ii)
    23. 8 C.F.R. 214.2(o)(2)(iv)(D)
    24. 8 C.F.R. 214.2(o)(2)(iv)(C)
    25. 8 C.F.R. § 214.2(o)(13)