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O VISA Extraordinary Ability or Achievement
2023 Legal Updates

O Visa - Extraordinary Ability or Achievement

The O Visa – Extraordinary Ability or Achievement Visa is for a person 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, who will participate in a related event.

With an O1 visa, you can live and work in the United States for extended periods, and your spouse and children may also be able to accompany you.

Number of visas issued in 2021: 19,779

Period of Stay: 3 Years (renewable for 1 year terms)

Normal Processing Time: 0-3 months Government Fee $460

Expedited Processing Time: 15 days Government Fee $2,500

Attorney’s Fee: $3,900 (paid in 2 installments $1,900, $2,000)

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12 Things You Need to Know About the EB2 NIW
- Table of Contents -

1. O Visa Extraordinary Ability or Achievement - Overview

The O-1 nonimmigrant visa is issued by the USCIS if you possess an extraordinary ability in the sciences, arts, education, business, or athletics. Alternatively, you have a demonstrated record of extraordinary achievement in the motion picture or television industry which has been recognized nationally or internationally. You must be coming temporarily to the United States to continue work in the area of your extraordinary ability.

The O nonimmigrant classification are subdivided in:

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 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.

2. O Visa Extraordinary Ability or Achievement - 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 and 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 percentages who have risen to the very top of the field. For detailed information regarding how USCIS evaluates evidence to determine O-1A eligibility, including examples and considerations that are especially relevant for those in science, technology, engineering, and mathematics (STEM) fields.

Extraordinary ability in the field of arts means distinction. Distinction means a high level of achievement in the field of the 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 and/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 either based on a pre-existing longstanding working relationship or, with respect to the specific production, because significant 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.

3. O Visa Extraordinary Ability or Achievement - Application Process for O1 Subsection

A U.S. employer, U.S. agent, or foreign employer through a U.S. agent should file a petition on your behalf 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 at least 45 days before the date of employment.

In addition to the Petition, the petitioner must also 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. USCIS may request that the petitioner submit the original version of the document.

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 submitted.

If you have an extraordinary ability in the field of arts and you are seeking readmission to perform similar services within two years of the date of a previous consultation the requirement can also be waived. We will submit a waiver request and a copy of the previous consultation with the petition.

Agreement between petitioner and beneficiary

The Petitioner must submit a copy of any written agreement 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. Detailed information regarding USCIS policy relating to agent petitioners can be found in the USCIS Policy Manual Volume 2, Part M, Chapter 3.

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. Detailed information regarding how USCIS evaluates evidence to determine eligibility and whether you are coming to the United States to continue working in the area of extraordinary ability can be found in the USCIS Policy Manual Volume 2, Part M, Chapter 4.

4. O Visa Extraordinary Ability or Achievement - Application Process for O2 Subsection

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

Your employer or agent should file a Petition on your behalf, along with the required evidence. 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 petition. Your employer or agent cannot file your petition more than one year before the artist or athlete begins employment. To avoid delays, your employer or agent should file your petition at least 45 days before the date of employment.

In addition to the Petition the petitioner must submit the following documentary evidence:

Consultation

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

If you will 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 you’re your continuing participation is essential to the successful completion of the production.

Standard of review of terms – Definitions

Arts

includes any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts. Aliens engaged in the field of arts include not only the principal creators and performers but 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.

Event

means an activity such as, but not limited to, a scientific project, conference, convention, lecture series, tour, exhibit, business project, academic year, or engagement. Such activity may include short vacations, promotional appearances, and stopovers which are incidental and/or related to the event. A group of related activities may also be considered to be an event. In the case of an O-1 athlete, the event could be the alien’s contract.

Extraordinary ability in the field of arts

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

Extraordinary ability in the field of science, education, business, or athletics

means a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor.

Extraordinary achievement

(with respect to motion picture and television productions, as commonly defined in the industry,)

means 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.

Peer group

means a group or organization which is comprised of practitioners of the alien’s occupation. If there is a collective bargaining representative of an employer’s employees in the occupational classification for which the alien is being sought, such a representative may be considered the appropriate peer group for purposes of consultation.

After the petition is approved

Once the petition is approved, you can apply for your visa at a U.S. Embassy or Consulate in the country of your residence. We can also assist you with this application process by electronically uploading to the United States Department of State server so your visa will be issued with no delay.

5. O Visa Extraordinary Ability or Achievement - Period of Stay / Extension of Stay

The period of stay for all O Visa categories is for up to 3 years which can be renewed for subsequent terms of 1 year.

As an O non-immigrant, 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.

If you need to extend your stay to continue or complete the same event or activity, your employer or agent must request an extension.

The extension petition must include a statement describing the event or activity that was the basis for the original approval and confirming that the extension is needed so you can continue or complete the same event or activity as described. The same applies to O2 accompanying visas or O3 visas for spouses or children of O1 or O2 visa holders.

6. O Visa Extraordinary Ability or Achievement - Family of O-1 and O-2 Visa Holders

If your spouse and children under the age of 21 will accompany you as either O1 or O2 visa holder or join you later (called “following to join”), they may be eligible to apply for an O-3 nonimmigrant visa.

The visa will be subject to the same period of admission and limitations as you. Your spouse or children may not work in the United States under this classification, but they may participate in full-time or part-time study on the O-3 visa.

7. O Visa Extraordinary Ability or Achievement - Changing Employers

If you are an O-1 non-immigrant in the United States and want to change employers, the new employer must petition with the USCIS. If an agent filed your original petition, your new employer must file an amended petition with evidence showing they are your new employer and a request for an extension of stay.

The same standard will apply to an O2 accompanying visa where an O1 will change employer as well as to any dependent O3 spouses or children.

8. O Visa Extraordinary Ability or Achievement - Material Change in Terms and Conditions of Employment

If there has been any material change, those other than the addition of additional 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 petition. Filing the new petition 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 petition within 30 days of the trade, you lose your employment authorization. You also lose your employment authorization if USCIS denies your petition.

9. O Visa Extraordinary Ability or Achievement - Client Application Timeline

Every client’s file and situation are different, but in general terms, the following is a timeline of our office processing your case.

Initial Client Consultation
O Visa Consultation/ Attorney contract – Strategy Session
Office issues checklists
Complete the Client Intake Questionnaire
Client Completes Draft Forms
Client Uploads Documents on Portal
Review Supporting Documents (Credentials, Resumes, References, Articles, Pay, Research, Acclaim)
Client submits Career Overview
Prepare together supporting Memorandum
Finalize Final Draft
Final Joint Review
Upload/Submit to USCIS

The crucial phase in the client’s representation is compiling all information and demonstrating Distinction.

The process necessitates securing the required documents (Credentials, Achievements, Resumes, References, Articles, Pay history, Research, and Acclaim) and drafting the case memorandum.

Our office will review and prepare the memorandum and finalize your application within 1-2 weeks or sooner from receiving all documents.

10. O Visa Extraordinary Ability or Achievement - USCIS Application Processing Times and Fees

The United States Citizenship and Immigration Service (USCIS) charges the following governmental fees, subject to changes.*

Standard Processing Fee

USCIS Standard Application Fee: $460.00

The standard processing time corresponding to the standard fee for O visa is between 2 weeks to 3 months.

Premium Processing Fee

USCIS Premium Processing Application Fee: $2500.00 (in addition to the standard fee of the $460)

There is the possibility for your case to be processed faster if you pay a premium governmental processing fee of $2500 directly to the United States Citizenship and Immigration Service, which will guarantee the processing of your application in only 15 days or sooner (time updated on September 15, 2022).

11. O Visa Extraordinary Ability or Achievement - Attorney's Processing Times and Fees

Our office charges $3,900.00, payable in two installments ($1,900 at inception and $2,000 at submission), to prepare the O petition; this includes the consultations, review, document preparation, memorandum, and file submission to USCIS (a complete file submission). We offer a volume discount for groups, teams, and a series of 4 or more individuals participating in the same event.

Our fees are, in general, non-refundable. Still, in cases of O visas, we usually offer a money-back guarantee after receiving all client documentation that confirms our requirements and checklists so that clients can rest assured of our services.

In general, it will take us about 1-2 weeks to organize every aspect of your file, review your documents, and write the case memorandum.

From our experience, clients typically will dedicate a significant amount of time to securing all the requisite documents, which generally takes anywhere from 2 weeks to 2 months. At all times, we communicate with our clients, and we offer an online portal where we strive to review documents as they are being uploaded by the clients so that we can spot any elements subject to change.

Our portal is available 24/7/365, and we encourage clients to upload, message, and schedule any case conferences through the portal, which consolidates all information in one place.

After the petition is received by USCIS, there can be 2 decisions – Approval or Request for Additional Information (RFI). RFI requests are typical in these cases and are sent on average in about 20-30% of the cases.

An RFI can request a more elaborate answer to a question formulated by USCIS, for example, on “distinction”.

We will work with our clients in clearing the first round of RFI free of charge. For any additional rounds of RFI, very uncommon, we will customarily charge based on the complexity and the time needed, usually $1,000.

13. O Visa Extraordinary Ability or Achievement - Consular processing

Once your EB-2 petition is approved, you and your dependents if they also solicit an O3 visa (your spouse and children under 21) will have to apply further to the United States Consulate in the country of your residence.

The permanent consular application is mainly an elaborated background check performed by the United States and your country authorities to establish that you meet the conditions for admissibility and that you are not subject to a bar to admission.

Inadmissibility conditions could be illegal activities, which may take the form of an unlawful stay in the U.S., to more severe conditions, such as terrorism, human trafficking, money laundering, prostitution, etc.

The consular application may be a complex application requiring information about yourself, including past employment, residences, family background, and membership in various organizations.

There have been instances where applicants were convicted of petty crimes, and we have been asked about admissibility despite conviction. In general, the conviction of a crime is not an automatic disqualifier. Still, there are certain limits concerning the crimes and the sentence applied. We usually address these topics in our strategy consultation before applying for the O visa.

The general rule is that an applicant should not be convicted of any crime where the law provides for a sentence longer than 1 year imprisonment, and the sentence applied should not be longer than 6 months. There is, however, a list of crimes involving moral turpitude (fraud, drugs, prostitution, etc.) where if sentenced even to probation, could disqualify an applicant.

The Consular Application is filed at the U.S. Consulate abroad and is subject to another governmental fee ($260) and an additional attorney’s fee ($750).

We strongly advise you to retain our firm to prepare your Consular Application.

Consular Processing*:

$325.00 for the principal applicant
$325 for each dependent (spouse/child)

Consular Processing Attorney’s Fees:

$750.00 for the main applicant O1/O2 Visa category (Consular Processing outside of the U.S.)
$350.00 for each dependent (spouse/child) O3 Visa category (Consular Processing outside of the U.S.)

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O VISA Extraordinary Ability or Achievement2023 Legal Updates