What is an O-1 visa?
The O-1 visa is granted to individuals with an extraordinary ability (or achievement) who have reached the top of their field — whether it be in the arts, sciences, athletics, business, film, T.V., or education. O-1 visa grantees may also bring their loved ones — using the O-3 category — or an assistant needed for a particular event — using the O-2 category.
In this guide, we’ll go over the basics of the O1 visa:
If filing Form I-129 (officially called “Petition for Nonimmigrant Worker”) at the California Service Center, the petitioner can expect to wait 4.5 months before a decision is made. If, however, they file the petition at the Vermont Service Center, the waiting time will be 2 weeks (at the time of writing). These timelines are current as of May, 2022.
For an updated look at processing times, check out the U.S. Citizenship and Immigration Services (USCIS) processing times tool.
According to the USCIS instructions for Form I-129, the petitioner — usually the beneficiary’s employer — will need to pay a filing fee of $460. They can do this using a check or money order made out to “U.S. Department of Homeland Security”. Or, if they’re paying the fee using a USCIS lockbox, they can use a credit card, in which case they’ll need to fill out Form G-1450 (officially called “Authorization for Credit Card Transactions”).
If, for some reason, the beneficiary is asked to leave the United States prior to their official end date, the petitioner may be obligated to cover the cost of travel.
The O-1 visa requirements will vary depending on the beneficiary’s particular circumstances. The following section will be divided into 4 parts:
- Business, science, athletics, and education
- Resolving Ambiguities
Business, Science, Athletics, and Education
Applicants in any one of these fields will need to apply for the O-1A visa. To successfully obtain an O-1A visa, they must:
- Have an extraordinary ability
- Have “sustained national or international acclaim”
- Show that they have risen to the upper echelon of their field
The standard in this category is that of distinction. If applying as an artist, under the O-1B (arts) category, the beneficiary will need to prove that they:
- Are distinguished in their field
- Have attained a “high level of achievement”
- Have a skill and recognition above and beyond that normally seen in the arts
- Are widely acclaimed in the art world
Applicants in the motion picture and television (MPTV) industry will need to apply for the O-1B (MPTV) visa. The beneficiary must:
- Have a record of extraordinary achievement
- Have a skill and recognition superseding that usually encountered in the film and T.V. industry
- Be widely recognized as being prominent in their field
The applicant may have some difficulty determining whether they should apply for the arts or the MPTV category if, for instance, they are a visual artist whose work will be displayed in a major motion picture. Further confusion may result if the artist’s work will be featured in online content. Generally speaking, any work appearing in streamed movies, online commercials, web series, or other content similar to T.V. or motion pictures, will most likely be classified as MPTV. Content appearing on static websites, self-produced blogs/vlogs, or social media will, more often than not, fall under the arts category.
As a rule of thumb, if the artist’s work falls primarily outside of the film and T.V. industry, they should apply for an O-1B (arts) visa. But if the artist plans on working on a motion picture or television series while in the United States, they should probably apply for the O-1B (MPTV) visa.
A U.S. employer or agent (or a U.S. agent acting on behalf of a foreign employer) will need to file Form I-129. They should be sure to follow the instructions and present the required documents. To ensure a timely process, they should submit the form at least 45 days before the job begins. The petitioner will not, however, be able to file Form I-129 more than 6 months prior to the intended start date.
As outlined in the USCIS policy manual, the petitioner will need to provide, with Form I-129, an advisory letter written by an organization of peers — such as a labor union or management organization — attesting to the beneficiary’s extraordinary ability in the field. The letter may also be written by a single expert in the relevant field.
Note: If the letter is written on stationary with an identifying watermark, the petitioner should be sure to send the original copy. Failure to show the actual watermark could result in a delayed process, as USCIS may need to send a request for evidence (RFE) to obtain the original marked copy.
The petitioner may bypass the advisory letter requirement if no peer organization exists, in which case USCIS would make their decision using only the evidence submitted with I-129. If the beneficiary has, within the past 2 years, entered the United States using an advisory letter, then the petitioner may submit a request to waive this requirement.
When submitting Form I-129, the petitioner must provide the employment contract — or a written account of the verbal agreement — securing the employer-employee relationship. They will also need to provide evidence that, throughout the requested period of time, the beneficiary will be working in a job in their “area of extraordinary ability.” This includes:
- A description of the activities
- Start and end dates for the activities in question
- Copy of the itinerary for the events
Finally, the petitioner must include proof of the beneficiary’s extraordinary ability (as described in the previous section). Evidence might include either an award (or, in certain cases, a nomination) or 3 distinct types of proof, which we’ll discuss below.
The forms of acceptable evidence will vary depending on the particular situation. If the beneficiary is seeking an O-1A visa, they may submit 3 of the following:
- Documents proving that the beneficiary is a part of a relevant organization requiring its members to have a record of outstanding achievement
- Evidence showing the beneficiary has received a nationally or internationally recognized award in their field
- Proof that the beneficiary has been employed by a highly-esteemed organization and that their role was significant or essential in some way
- Documentary evidence of the beneficiary’s specific contributions to the field
- Proof that the beneficiary has written professional or scholarly work published in trade publications, major media, or journals
- Evidence that the beneficiary has been paid significant sums of money for performing duties in their field
- Articles or other published work regarding the beneficiary’s particular influence on their field — must include author, date, and title of the published piece
- Proof that the beneficiary has been on a panel of experts judging the work of others in their field
If the beneficiary is applying for an O-1B visa, they may use 3 of the following types of evidence:
- Testimonial from other experts or agencies in the field attesting to the beneficiary’s reputation
- Proof demonstrating that the beneficiary has a history of taking on “lead, starring, or critical” roles for highly reputed organizations
- Proof — such as box office receipts, title, ratings, or published material — demonstrating the beneficiary’s “major commercial or critically acclaimed successes”
- Documentary evidence — such as reviews, articles, or testimonials published in major publications — showing that the beneficiary has a national or international reputation for being extraordinary in their field
- Evidence that the beneficiary has been paid large quantities of money to perform relevant services
- Advertisements, reviews, publicity releases, endorsements, contracts, or publications showing that the beneficiary has participated (and will participate) as a star or leading figure in major “productions or events”
The petitioner may, in certain circumstances, submit “comparable” evidence. In this case, they would need to provide a written explanation as to why a particular criterion is insufficient, and they would need to explain why the alternative evidence is “comparable” to the criterion being replaced.
For a thorough breakdown of O-1 visa requirements, eligibility, and documentation, read Volume 2, Part M, Chapter 4 of the USCIS policy manual.
Does the beneficiary need to apply for a visa after Form I-129 gets approved?
No. If Form I-129 is approved, then the beneficiary will be granted an O-1 visa for the required amount of time (not to exceed 3 years). O-2 visa applicants will, however, need to apply for a visa after Form I-129 approval. Those seeking O-2 visas can find more information on the U.S. Department of State website.
What happens if the petition gets denied?
USCIS will send a written notification to the petitioner explaining why the case was rejected. The notification should contain information about how to appeal (through the Administrative Appeals Office) and how to file a motion to reopen the case (through the USCIS office that processed the petition). Note: USCIS should not refuse a petition because they’ve found a permanent labor certification or employment-based visa application for the same beneficiary.
Can the beneficiary extend their stay after their arrival in the United States?
Yes. If the beneficiary would like to extend their stay, the employer (or agent) must file another petition (Form I-129), together with a copy of the arrival/departure record (Form I-94) and a written justification for the extension. The petitioner should include a description of the event or production named on the initial petition, and they should explain why an extension is needed for this event or production.
Can the beneficiary bring their children and/or spouse?
Yes. With an O3 visa, a spouse, or any children below the age of 21, can join the O-1 (or O2) beneficiary. They would follow the same limitations and time restrictions as the O-1 recipient, and while they are not permitted to work, they can attend school, either as a full-time or part-time student, while in the United States.
Can USCIS revoke an O-1 visa?
Yes, USCIS can revoke the visa for a number of reasons, including:
- If the petitioner “ceases to exist”
- If they formally apply to annul the petition
- If the beneficiary quits or is fired from the position
- If USCIS wrongfully approved the petition
- If the petitioner violates the pertinent laws or regulations
- If it comes to light that the initial petition was false in any way
- If the petitioner breaches the terms and conditions of the petition
If USCIS finds reason to revoke the O-1 visa, they will likely send a Notice of Intent to Revoke (NOIR), which should state the reasons for revocation and the amount of time the petitioner has to contest the decision.
Applicant’s seeking an O-1 visa may also be eligible for the EB-2 work visa.