Immigration Law – O-1 Visa

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What are the different types of an O-1 immigration law visas?

The O-1 category is set aside for an immigrant who possesses extraordinary ability. Pursuant to immigration law, there are three different standards for the O-1 category: (1) the most exacting standard applies to aliens in the sciences, education, business, and athletics; (2) a much less rigorous standard applies to individual aliens in the arts; and (3) an intermediate standard applies to aliens of extraordinary achievement in the motion picture or TV industries.

(a). Aliens of extraordinary ability in the sciences, education, business, and athletics

To qualify for O-1 status, the immigrant must demonstrate sustained national or international acclaim and recognition for achievements in the field of expertise by providing evidence of:

• receipt of a major, internationally-recognized award, such as the Nobel Prize, or
• at least three of the following forms of documentation:
  • receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor.
  • membership in associations in the field which require outstanding achievements of their members (as judged by recognized national or international experts in the discipline or fields).
  • published material in professional or major trade publications or major media about the alien concerning the alien’s work in the field (include the title, date, and author of such published material, and any necessary translation).
  • participation on a panel, or individually, as a judge of the work of others in the field.
  • scientific, scholarly, or business-related contributions of major significance in the field.
  • authorship of scholarly articles in the field in professional journals or other major media.
  • employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.
  • high salary or other remuneration commanded by the alien for services (as evidenced by contracts or other reliable evidence).
  • other comparable evidence.

(b). Aliens of extraordinary ability in the arts

To qualify as a member of the second group of O-1, immigrant (aliens of extraordinary ability in the arts), the USCIS rules require “distinction.” “Distinction” accrding to USCIS, means a high level of achievement in the field of arts as evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person is described as prominent, leading, or well known in the field of arts.

The rules define the term “art” to include any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts. In addition, aliens engaged in the field of arts include not only the principal creators and performers but also other essential persons such as, but not limited to, directors, set designers, lighting designers, sound designers, choreographers, choreologists, conductors, orchestrators, coaches, arrangers, musical supervisors, costume designers, makeup artists, flight masters, stage technicians, and animal trainers. The Administrative Appeals Office has held that a position of architect/urban designer also falls within the field of fine arts.

To establish the immigrant’s distinction, USCIS rules provide that the immigrant must be recognized as being prominent in his or her field as demonstrated by the following:

• evidence that the alien has been nominated for or has been the recipient of significant national or international awards or prizes in the particular field, such as an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award, or
• at least three of the following forms of documentation that the alien:
• has or will perform a lead or starring role in productions or events which have a distinguished reputation (as evidenced by critical reviews, advertisements, publicity releases, publications contracts, or endorsements).
• has achieved national or international recognition for achievements (evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications).
• has performed a lead, starring or critical role for organizations and establishments that have a distinguished reputation (evidenced by articles in newspapers, trade journals, publications, or testimonials).
• has a record of major commercial or critically acclaimed successes (as evidenced by such indicators as title, rating, 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).
• has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged (such testimonials must clearly indicate the author’s authority, expertise, and knowledge of the alien’s achievements).
• has commanded or now commands a high salary or other substantial remuneration for services in relation to others in the field (as evidenced by contracts or other reliable evidence).
• other comparable evidence.

(c). Aliens of extraordinary achievement in the motion picture or TV industries

To qualify as a person of extraordinary achievement in the motion picture or television industries, it must be shown that the immigrant has a very high level of accomplishment in the motion picture or television industry evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent that the person is recognized as outstanding, notable, or leading in the motion picture or television field. This standard is more exacting than the standard applicable to aliens of extraordinary ability in the arts but less rigorous than the standard applicable to aliens in the sciences, education, business, and athletics.

(d). Work in area of extraordinary ability or achievement

The O-1 alien must be coming to the United States to work in his or her area of extraordinary ability or achievement. Under prior rules, the Service had taken the position that the performance, event, or position must require the services of an alien of extraordinary ability or achievement. Responding to comments from industry groups that there was no statutory basis for such a requirement, the August 1994 rules eliminated the requirement that an O-1 alien must be coming to perform services in a performance, event, or position which requires the services of an alien of extraordinary ability or achievement. Instead, under the final rules, it must merely be shown that the alien will perform services in his or her area of extraordinary ability or achievement.

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