The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability 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 O nonimmigrant classification are commonly referred to as:

• O-1A: Individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures, or television industry);

• O-1B: Individuals with an extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry;

• O-2: Individuals who will accompany an O-1 artist or athlete to assist in a specific event or performance; and

• O-3: Individuals who are the spouse or children of O-1 and O-2 visa holders.

General Eligibility

To qualify for an O-1 visa, you must demonstrate extraordinary ability by sustained national or international acclaim, or a record of extraordinary achievement in the motion picture or television industry, and must be coming temporarily to the United States to continue work in the area of extraordinary ability.

Extraordinary ability in the fields of science, education, business, or athletics means a level of expertise indicating that you are one of the small percentage who have risen to the very top of the field.

Extraordinary ability in the field of arts means distinction. Distinction means a high level of achievement in the field of arts. This is evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that you are prominent, renowned, leading, or well-known in the field of arts.

To qualify for an O-1 visa in the motion picture or television industry, you must demonstrate extraordinary achievement. This is evidenced by a degree of skill and recognition significantly above that ordinarily encountered, to the extent that you are recognized as outstanding, notable, or leading in the motion picture or television field.

To qualify for an O-2 visa your assistance must be an “integral part” of the O-1A visa holder’s performance and you must have critical skills and experience with the O-1 visa holder that are not of a general nature and cannot be readily performed by a U.S. worker. In the case of an O-2 visa holder in the motion picture or television industry, you must have skills and experience with the O-1 visa holder that are not of a general nature and which are critical—based either on a preexisting, longstanding working relationship or, with respect to the specific production (including pre- and post-production work) will take place both inside and outside the United States, and your continuing participation is essential to the successful completion of the production.

Application Process for an O-1 Visa

A U.S. employer, U.S. agent, or foreign employer through a U.S. agent should file Form I-129, Petition for Nonimmigrant Worker, on your behalf—along with the required evidence according to the form instructions. Your employer or agent cannot file the petition more than one year before they actually need your services. To avoid delays, your employer or agent should file your Form I-129 at least 45 days before the date of employment.

In addition to the Form I-129, the petitioner must submit the documentary evidence discussed below:

Consultation

The petitioner must provide a written advisory opinion from a peer group (including labor organizations) or a person with expertise in the beneficiary’s area of ability. If the O-1 petition is for an individual with extraordinary achievement in motion picture or television, the consultation must come from an appropriate labor union and a management organization with expertise in the beneficiary’s area of ability.

When a consultation includes a watermark or other distinctive marks to confirm the authenticity of the document, petitioners should submit to United States Citizenship and Immigration Services (USCIS) the version containing the watermark or other distinctive marks. Copies of documents that do not contain the appropriate watermark or other distinctive marks may raise doubts about the authenticity of the document and may result in processing delays.

For example, USCIS may request that the petitioner submit the original version of the document. To avoid processing delays, petitioners should ensure that they submit the appropriate version and that any associated watermark or other distinctive marks are legible.

Exceptions to the Consultation Requirement

If your employer or agent can demonstrate that an appropriate peer group—including a labor organization—does not exist, then USCIS will base its decision on the evidence the employer or agent submits in support of the Form I-129. USCIS may waive a consultation if you have extraordinary ability in the field of arts and you are seeking permission to perform similar services within two years of the date of a previous consultation. Your employer or agent should submit a waiver request and a copy of the previous consultation with the petition.

Contract Between Petitioner and Beneficiary

The petitioner must submit a copy of any written contract between you and the petitioner or a summary of the terms of the oral agreement under which you will be employed.

Itineraries

The petitioner must provide an explanation of the nature of the events or activities, the beginning and ending dates for the events or activities, and a copy of any itinerary for the events or activities, if applicable. The petitioner must establish that there are events or activities in your field of extraordinary ability for the validity period requested such as an itinerary for a tour or a series of events.

Agents

A U.S. agent may be your actual employer, the representative of both you and the employer, or a person or entity authorized by the employer to act for, or in place of, the employer as its agent.

Evidence Demonstrating O-1 Eligibility

The petitioner must provide evidence demonstrating your extraordinary ability in the sciences, arts, business, education, or athletics, or extraordinary achievement in the motion picture industry. The record must include at least three different types of documentation corresponding to those listed in the regulations, or comparable evidence in certain circumstances, and the evidence must, as a whole, demonstrate that you meet the relevant standards for classification.

Application Process for O-2 Visa

Your employer or agent should file Form I-129, Petition for Nonimmigrant Worker, on your behalf, along with the required evidence according to the form instructions. They must petition for you in connection with the services of an O-1 artist or athlete, but you and the O-1 artist or athlete must each have your own Form I-129.

Your employer or agent cannot file your Form I-129 more than one year before the artist or athlete will begin employment. To avoid delays, your employer or agent should file your Form I-129 at least 45 days before the date of employment.

In addition to Form I-129, Petition for Nonimmigrant Worker, the petitioner must submit the following documentary evidence:

• If petitioning in support of an individual with extraordinary ability in athletics or the arts, the consultation must be from the appropriate labor organization; or

• If petitioning in support of an individual with extraordinary achievement in motion pictures or television, the consultation must come from an appropriate labor organization and a management organization with expertise in the skill area involved.

Evidence Demonstrating O-2 Eligibility

The evidence should establish your current essentiality, critical skills, and experience with the O-1 beneficiary—and that you have substantial experience performing the critical skills and essential support services for the O-1.

In the case of a specific motion picture or television production, the evidence should establish that significant production—including pre- and post-production—has taken place outside the United States and will take place inside the United States, and that your continuing participation is essential to the successful completion of the production.

After USCIS Approves Your Petition

Once USCIS approves your petition, you can apply for your visa at a U.S. Embassy or Consulate. Department of State (DOS) establishes visa application processing and issuance fees.

Period of Stay/Extension of Stay

As an O nonimmigrant, you may be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. You are only authorized to work during the validity period of the petition.

Extension of Stay

If you need to extend your stay to continue or complete the same event or activity, your employer or agent must file the following documents with USCIS:

• Form I-129, Petition for a Nonimmigrant Worker;

• A copy of your Form I-94, Arrival/Departure Record; and

• A statement explaining the reasons for the extension.

To help USCIS process your request, the statement should describe the event or activity that was the basis for the original approval and confirm that the extension is needed so you can continue or complete the same event or activity as described.

Your spouse and children must file Form I-539, Application to Extend/Change Nonimmigrant Status, and submit any supporting documents to extend their stay.

Family of O-1 and O-2 Visa Holders

If your spouse and children under the age of 21 will accompany you or join you later (known as “following to join”), they may be eligible to apply for an O-3 nonimmigrant visa that will be subject to the same period of admission and limitations as you. They may not work in the United States under this classification, but they may participate in full-time or part-time study on an O-3 visa.

Changing Employers

If you are an O-1 nonimmigrant in the United States and want to change employers, the new employer must file Form I-129 with the USCIS office listed on the form instructions. If an agent filed your original petition, your new employer must file an amended petition with evidence showing (1) they are your new employer and (2) a request for an extension of stay.

Material Change in Terms and Conditions of Employment

If there has been any material change—those other than the addition of performances or engagements that require someone of extraordinary ability—in the terms and conditions of your employment or eligibility, your employer or agent must file an amended Form I-129 with the service center where the original petition was filed.

Athletes

There are special rules for O-1 professional athletes. If you are traded from one team to another, employment authorization will continue with the new team for 30 days—during which time the new employer must file a new Form I-129. Filing the new Form I-129 within this 30-day period extends your employment authorization at least until USCIS processes your petition. If the new employer does not file a new Form I-129 within 30 days of the trade, you lose your employment authorization.

You also lose your employment authorization if USCIS denies your new Form I-129.

Return Transportation

If your employer terminates your employment for reasons other than your voluntary resignation, they must pay for the reasonable cost of return transportation to your last place of residence before entering the United States. If an agent filed the petition for the employer, the agent and the employer are equally responsible for paying these costs.

The O-1 nonimmigrant visa is designed for individuals with extraordinary abilities in various fields or with a record of extraordinary achievement, particularly in the motion picture or television industry. In West Virginia, as in all other U.S. states, the regulations for the O-1 visa are governed by federal law, as immigration is a matter of federal jurisdiction. To qualify for an O-1 visa, applicants must demonstrate a high level of expertise or achievement, and they must intend to work temporarily in the U.S. in their area of ability. The O-1 classification is divided into O-1A for sciences, education, business, or athletics, and O-1B for the arts, motion pictures, or television. The O-2 visa is for assistants to O-1 visa holders, and O-3 visas are for the spouses or children of O-1 and O-2 holders. The application process involves filing Form I-129 and providing substantial evidence of the applicant's extraordinary ability or achievement. Consultations with peer groups or experts are generally required unless an exception applies. After USCIS approves the petition, the applicant can apply for a visa at a U.S. Embassy or Consulate. The period of stay can be extended for the same event or activity, and there are specific provisions for changing employers or for professional athletes who are traded to a new team. If employment is terminated for reasons other than voluntary resignation, the employer must pay for the individual's return transportation.