O VISAS FOR PERSONS OF EXTRAORDINARY ABILITY

  1. O-1:

    • Person who "has extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim." O-l A.

      1. If in motion picture or TV production, the person must have "a demonstrated record of extraordinary achievement." Person needs to demonstrate that his/her achievements have been recognized in the field "through extensive documentation." O-1 B.

    • INS interprets statute to encompass "any field of endeavor" including craftsmen and lecturers. Memo, Weinig, Acting Asst. Comm., CO 2148.1-C, 214P.1C (June 25, 1992), reprinted in 69 Interpreter Releases 1084-86 (Aug. 31, 1992). 

    • Must seek to enter for the purpose of continuing the type of work, but there is no requirement that the person is coming to the U .S. to perform services requiring a person of O-1 caliber. 

    • No foreign residence requirement.

  2. O-2:

    • Person accompanying and assisting in the artistic or athletic performance for a specific event or events so long as:

      1. S/he is an integral part of such actual performance.

      2. S/he has critical skills and experience that are not of a general nature and which cannot be performed by other individuals.

        • In the case of motion picture or TV, person has skills and experience which are not general, which are critical and which are based on a pre-existing long-standing working relationship. In the case of a specific production a long-standing relationship is unnecessary where there is significant pre or post production work that will take place inside and outside U.S. and the person's presence needed for successful completion.

      3.  S/he has foreign residence which s/he has no intention of abandoning.

  3. Includes spouse and children accompanying and following to join as O-3s.

  4. Extraordinary Ability/Extraordinary Achievement Defined:

    • Extraordinary ability in the field of science, education, business or athletics is "a level of expertise indicating that the person is one of the small percentage who have risen to the very top of the field of endeavor,"

    • Extraordinary ability in the field of art means "distinction," that is "a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered." This category requires the petitioner to establish only that the artist is "prominent in his or her field of endeavor."

    • Extraordinary achievement means a "very high level of accomplishment in the motion picture or TV industry evidenced by a degree of skill and recognition substantially above that ordinarily encountered." The person must be "outstanding or notable." 

    • Proving extraordinary ability in science, education, business or athletics:

      1. Beneficiary must prove sustained national or international acclaim by receipt of a major internationally recognized award such as the Nobel Prize, or by providing documentation of at least 3 factors: (a) recipient of nationally or internationally recognized awards; (b ) membership in organization that requires outstanding achievement; (c) published materials in professional or major trade publications; (d) judgment of the work of others; (e) original scientific or scholarly work of major significance in his/her field; (f) evidence of authorship of scholarly work; (g) evidence that s/he has been employed at organization with a distinguished reputation; (h) has commanded and does command a high salary (if the standards do not readily apply petitioner may submit comparable evidence).

    • Proving distinction in the arts :

      1. Beneficiary must prove s/he is prominent in his or her field as demonstrated by being nominated for or the recipient of a significant international or national award or prize, such as an Academy Award, Emmy, Grammy or Director's Guild A ward, or can document at least 3 of the following:

        • leading production having a distinguished reputation;

        • critical reviews in newspapers or trade journals;

        • lead for organization that has a distinguished reputation;

        • record of major commercial or critically acclaimed successes;

        • significant recognition from organizations, critic! government agencies or other recognized experts II the field;

        • commands or has commanded a high salary.

    • Proving extraordinary achievement in motion picture or TV industry:

      1. The INS relies on the same criteria used to prove distinction in the arts, except that it will weigh the evidence differently and require a person of extraordinary achievement "to meet a higher standard." 

    • The beneficiary may also submit comparable evidence if the above does not readily apply to his/her occupation. The petitioner in all O categories is not required to demonstrate that the work requires someone of O-1 caliber. Evidence needs to establish current essentiality, critical skills and experience not possessed by U.S. worker. For the motion picture industry need to establish that significant production has taken place outside the U.S. and will take place in the U.S. and the beneficiary's participation is essential to complete production.

    • General documentary requirements for all O categories: Can use affidavits, contracts, awards and similar documentation. Need explanation of nature, time frame and itinerary of events. Need advisory opinion from consultative organization.

  5. Consultations:

    •  O-1/O-2:

      1. If in the motion picture or TV business, only after consultation with the union and management group. The opinion must describe the applicant’s achievements in motion picture or TV and state whether position requires person of extraordinary achievement.

      2. For all other O-1 and O-2, the petition must be accompanied by a written advisory opinion from a peer group, a person with expertise in the applicant's field, or a labor organization with expertise in the field/area. A peer group may be a labor organization. The advisory opinion for O-1 extraordinary ability must describe the applicant's ability and achievements in the field of endeavor, the nature of the duties to be performed, and whether the position requires somebody of extraordinary ability. The advisory opinion for O-2s must describe the person's essentiality to and working relationship with the O-1 and state whether U.S. workers are available. For O-2 extraordinary achievement (TV/motion pictures) must show previous relationship. Consultations must be submitted for each type of occupation listed if they are requested by different unions. Memo, Weinig, Acting Asst. Comm., CO 2140.1C, 214P.1C (June 25, 1992), reprinted in 69 Interpreter Releases 1084-86 (Aug. 31, 1992). A consulting organization in lieu of an opinion may simply submit a letter stating it has no objection to the approval of the petition. If an advisory opinion is obtained from a peer group that is not a union then INS must forward petition to appropriate union within 5 days of receipt, receive a response within 15 days, and decide within 14 days after response or failure to respond.  If the consultation does not contain all the elements necessary, INS should approve the petition if it is otherwise approvable. Memo, Weinig (June 25, 1992).

      3. If O-1 readmitted within 2 years after consultation for extraordinary ability in the arts a new consultation is waived. Also written consultations are not required for extensions of stay. Letter, Bednarz, Chief, NIV Branch, Adjudications, CO 214h-C (Sept. 29, 1992), reprinted in 69 Interpreter Releases 1471-72 (Nov. 16,1992).

      4. Regulations also provide for an expedited process when person will be employed in the field of art, entertainment or athletics. 8 CFR § 214.2( o )(5)(i)(E).

      5. The Operating Instructions contain a list of consulting entities as well as list of those fields that have no consulting organization

  6. Petition Process –8 CFR 214.2(o)(2).

    • I-129 application.O-1 cannot petition for himself. Letter Weinig Acting Asst Comm.,Adjudications,CO214o.IC (July 24,1992), reprinted in 69 Interpreter Release 1987(Aug. 31 1992).Must use U.S. agent to file in cases involving persons traditionally self-employed or where there is a foreign employer. Cannot file petition more than 6 months before person’s work.O-2 petition must be filed separately. Adjudication at RSC even in emergency. Photocopies may be submitted Approval on I-797.

    • Work at multiple location. Include Itinary. File I-129 at petitioner’s residence. If it is a foreign petitioner file at first area of work

    • Work for multiple employers. Each employer must file at the RSC.

    • Change employer. New employer must file with RSC and request E/S.O-2 cannot change unless O-1 does.

    • Amended petition. Need only file if change is material. Promotion is not a material change. 

    • Agents. Can file I-129 involving multiple employers as the representative of the employers and beneficiary if s/he includes itinerary and contract.

    • Multiple beneficiaries. May include multiple O-2s on one petition where they are assisting O-1 in same performance for same time.

    • The approval of a labor certification or filing of a preference petition shall not be a basis to deny an O petition or an extension of an O.

    • All extensions file on I-129. Granted in increments of one year. No documentation needed for extension of petition. 

    • Professional Athletes. When traded from one team to another, EA will continue with new team for 30 days during which time I-129 must be filed. If filed, EA extended until petition is adjudicated. 

  7. Admission:

    • Period of authorized stay for O category is for such time as the AG may specify in order to provide for the event or events, but no more than 3 years. The beneficiary may be admitted 10 days before and stay until 10 days after validity period. 

    • The petitioner and employer are jointly and severally liable for reasonable transportation costs of beneficiary's return home ifs/he is terminated. 

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  8. Denial:

    • If based on derogatory information that the petitioner was unaware of, s/he gets 30 days to respond. Otherwise final order entered and person can appeal to AAU.

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  9. Revocation: The RSC automatically revokes petition if petitioner, or in the case of an agent the underlying employer, goes out of business, files a written withdrawal or notifies the INS that the beneficiary is no longer employed. All other circumstances require notice prior to revocation.

For further information, send your query to Aparna Davé.