The "O"ther Visa

October 2011 - ByShahzad Ahmed with NeJame Law

One often overlooked visa for professionals or those with advanced skills is the "O" visa. The O visa comes from Section 101(a)(15)(O) of the Immigration and Nationality Act.

Often foreigners and their immigration attorneys reviewing possible immigration options overlook this possible visa. If an alien does not qualify for the traditional business visas, such as the L-1 or E-2, or certain employment visas such as the H-1B or H-2B, then he may still be eligible as an "Alien of Extraordinary Ability."

One primary benefit of the O-1 visa is that that applicant need not undergo the traditional labor certification process via the department of labor. Although the O-1 visa requires a job offer from an employer, the employer need not go through the rigorous prevailing wage and recruitment criteria of other employment visas.

Let's review this crucial employment-based visa. First, the O-1A Visa classification applies to persons who have extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim. Below we will discuss the evidentiary criteria for proving "extraordinary."

Second, there is the O-1B subcategory in the O-1 visa. The O-1B covers a person in motion picture or TV production. The person must have a demonstrated record of extraordinary achievement. A person needs to demonstrate that his or her achievements have been recognized in the field "through extensive documentation."

The O-1 Visa - Some Interesting Facts:

• Although the applicant for an O visa must seek to enter for the purpose of continuing the same type of work as his field, there is no requirement that the person come to the U.S. to perform services of the same extraordinary caliber.
• When it comes to seeking classification in the "arts," it is noteworthy that this term includes not only the principal creators and performers, but also other essential personnel such as directors, set designers, choreographers, orchestrators, coaches, arrangers, costume designers, make-up artists, stage technicians and animal trainers. It also includes the culinary arts.)
• What if your abilities are not extraordinary in the field of art or athletics but you will accompany an artist or athlete of extraordinary ability to the U.S.? Such accompanying individuals can be granted an O-2 visa to assist in an artistic or athletic performance for a specific event or performance.
• As for family members, the government may grant the O-3 visa so that spouses and children may accompany or follow to join the principal visa holders.

The Standards for "Extraordinary"

How much extraordinary is enough?

The immigration law defines extraordinary ability in science, education, business or athletics, as "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." The regulations provide several criteria for the type of evidence that may suffice to prove the extraordinary ability. This may include national or international awards or recognitions, articles written about the person's achievements, significant and original contribution the person has made in his field, etc. It is important to consult with an experienced immigration attorney about the necessary evidence for the O visa.

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.

For the O-1B, for extraordinary achievement in the motion pictures, the applicant must demonstrate a "very high level of accomplishment in the motion picture or TV industry evidenced by a degree of skill and recognition significantly above that ordinarily encountered." The person must be "outstanding or notable."

As mentioned previously, there are criteria to demonstrate eligibility for each type of O-1 visa. Thus an applicant must prepare extensively to present sufficient evidence.

When an application for the O visa is approved, it may grant a maximum of 3 years of authorized stay in the United States, which can be extended. Further, the person can apply for permanent residence under the first preference of the employment-based category, which does not require a job offer.

Although the O visa is not an option for most, we have appropriately dubbed it the "O"ther visa in those cases where the applicant may have the appropriate qualifications and thus bypass the necessity of the labor certification process.