Written by Steven H. Garfinkel, Esq., Founding Partner, N.C. Board Certified Immigration Law Specialist.
Employers face obstacles in obtaining appropriate visa status for their foreign national employees. The most common challenge is the lack of availability of H-1B visas as a result of high demand and the statutory cap imposed by Congress.
Employers should bear in mind that there may be other visa options for their employees. One such alternative is the O-1 visa for those who are extraordinary in their chosen field.
The O-1 holds numerous advantages for the petitioning employer and the sponsored employee. It may be granted for an initial period of three years and the regulations do not limit the number of times it may be extended. Furthermore, the O-1 may also serve as a foundation for the green card process in the future.
The O-1 visa is available for the foreign national who is highly talented or has reached a high level of acclaim in the sciences, arts, education, business or athletics (or who has a demonstrated record of extraordinary achievement in the motion picture or television industry) and has been recognized nationally or internationally for those achievements. The foreign national must be extraordinary in their field in terms of knowledge, ability, expertise and accomplishments and the position being offered must require the services of an extraordinary person.
In order to qualify under the O-1 nonimmigrant visa category, an applicant must be able to demonstrate that they have “sustained national or international acclaim” and that their achievements have been recognized in the field through extensive documentation.
The applicant must seek to enter the United States to continue work in their area of extraordinary ability and must have a job offer from a U.S. employer.
The O-1A (Science, education, business and athletics)
To qualify for an O-1A extraordinary ability visa in the sciences, education, business or athletics (not including the arts, motion pictures or television industry), an applicant would be required to be recognized as being at the top of their field.
To be eligible, the applicant must either have received a major, internationally recognized award, similar to a Nobel Prize, or more commonly, demonstrate they meet at least three of the following criteria:
- Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor
- Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field
- Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought
- Original scientific, scholarly, or business-related contributions of major significance in the field
- Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought
- A high salary or other remuneration for services as evidenced by contracts or other reliable evidence
- Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought
- Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation
It is important to note federal regulations allow for other comparable evidence if the above standards do not readily apply to the field. This provision allows immigration practitioners and employers leeway to be creative in formulating an argument for an exceptional employee who does not readily fit into the above categories as a result of the nature of their achievements. Our firm has successfully assisted clients to secure O-1 visas for individuals whose credentials fall far short of a Nobel Prize!
The O-1B (Arts)
To qualify for an O-1B extraordinary ability visa in the field of arts, the applicant must show that they have acquired “distinction” in their artistic field. Distinction means a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that the applicant described as prominent is renowned, leading or well-known in the field of arts.
To qualify for an O-1B visa in the motion picture or television industry, the applicant must demonstrate extraordinary achievement evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable or leading in the motion picture and/or television field.
For the O-1B visa, the applicant must provide evidence that they have received, or been nominated for, significant national or international awards or prizes in the particular field, such as an Academy Award, Emmy, Grammy or Director’s Guild Award, or evidence of at least three of the following:
- Performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements
- Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines or other publications
- Performed and will perform in a lead, starring or critical role for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications or testimonials
- A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers or other publications
- Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the beneficiary is engaged, with the testimonials clearly indicating the author’s authority, expertise and knowledge of the beneficiary’s achievements
- A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence
If the above standards do not readily apply to the beneficiary’s occupation in the arts, the petitioner may submit comparable evidence in order to establish eligibility (this exception does not apply to the motion picture or television industry).
As employers continue to assess staffing needs and visa sponsorship, the O-1 is an excellent option for hiring the best and the brightest.