The O-1 visa: Individuals with Extraordinary Ability or Achievement

O-1 Visa: Individuals with Extraordinary Ability or Achievement

The O-1A visa is for individuals who have demonstrated extraordinary abilities in the sciences, arts, education, business, or athletics.  The O-1B visa is for individuals who have demonstrated extraordinary achievement in the motion picture or TV production business.  The regulations list 8 criteria that are indications of extraordinary ability; to qualify for the visa, 3 criteria must be met.  The O-1 visa may be valid for an initial period of 3 years and may be extended indefinitely in 1 year increments.  While officially not a dual intent visa, it has been traditionally treated as such since there are no foreign residency requirements.  Dependents can join the O-1 visa holder in the U.S. on O-3 visas.

“Extraordinary Ability” means that the foreign national has a level of expertise indicating that the individual is one of a small percentage who has risen to the very top of their field of endeavor.  All O-1 visa seekers must be entering the U.S. to work in the field in which s/he has received that acclaim.  An applicant cannot self-petition.  Only a U.S. employer or agent can file an O-1 application on behalf of the foreign national.

O-1A criteria

The O-1A visa petition requires substantial documentation establishing the individual’s extraordinary ability.  Extraordinary ability can be demonstrated by receipt of a major internationally recognized award, such as the Nobel Prize or an Academy Award. 

Alternatively, evidence must be provided to establish at least three of the following types of evidence:

1. Documentation of the beneficiary's receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
2. Documentation of the beneficiary's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
3. Published material in professional or major trade publications or major media about the beneficiary, relating to the beneficiary's work in the field for which classification is sought, which must include the title, date, and author of such published material, and any necessary translation;
4. Evidence of the beneficiary's participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization for which classification is sought;
5. Evidence of the beneficiary's original scientific, scholarly, or business-related contributions of major significance in the field;
6. Evidence of the beneficiary's authorship of scholarly articles in the field, in professional journals, or other major media;
7. Evidence that the beneficiary has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation; or
8. Evidence that the beneficiary has either commanded a high salary or will command a high salary or other remuneration for services, as evidenced by contracts or other reliable evidence.

In July 2022, USCIS updated its Policy Manual to provide further guidance on evidence that may be used to support a petition for an O-1A nonimmigrant of extraordinary ability with a focus on science, technology, engineering, and mathematics (STEM) fields.  The comparable evidence that was added to the Policy Manual is:

• The record demonstrates that the beneficiary has published articles in particularly highly-ranked journals relative to other journals in the field, as demonstrated by, for example, evidence the petitioner provides regarding the journal’s impact factor.  Depending on the level of recognition of the journals in question, as demonstrated by evidence in the record, there may be particular prestige or acclaim associated with publication in such journals, especially if the beneficiary is the most significant contributor to the publication, a senior author, or the sole author of the article(s).

• The petitioner provides evidence demonstrating that the total rate of citations to the beneficiary’s body of published work is high relative to others in the field, or the beneficiary has a high h-index for the field. Depending on the field and the comparative data the petitioner provides, such evidence may indicate a beneficiary’s high overall standing for the purpose of demonstrating that the beneficiary is among the small percentage at the top of the field.

• The petitioner documents the beneficiary’s employment or research experience is with leading institutions in the field (such as U.S. universities that have been recognized as having high or very high research activity by the Carnegie Classification of Institutions of Higher Education, foreign universities with comparably high research activity, or a university that is highly regarded according to a widely recognized metric such as the QS World University Rankings).  Such employment or experience can be a positive factor toward demonstrating that the beneficiary is among the small percentage at the top of the field.

• The record establishes that the beneficiary has received unsolicited invitations to speak or present research at nationally or internationally recognized conferences in the field.  Although such a role for the conference may not rise to the level of a critical or essential capacity, this type of invitation is generally indicative of a person’s high standing and recognition for achievements in the field.

• The record establishes that the beneficiary is named as an investigator, scientist, or researcher on a peer-reviewed and competitively funded U.S. government grant or stipend for STEM research. This type of evidence can be a positive factor indicating a beneficiary is among the small percentage at the top of the beneficiary’s field.

O-1B criteria

The supporting documentation for an O-1B (Arts) petition must include evidence that the beneficiary has received, or been nominated for, a significant national or international award or prize in the particular field (such as an Academy Award, Emmy, Grammy, or Director’s Guild Award) or at least three of the following forms of evidence:

1. Evidence that the beneficiary has performed, and will perform, services as a lead or starring participant in productions or events that have a distinguished reputation, as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements;
2. Evidence that the beneficiary has achieved national or international recognition for achievements, as evidenced by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications;
3. Evidence that the beneficiary has 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;
4. Evidence that the beneficiary 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 pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications;
5. Evidence that the beneficiary has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the beneficiary is engaged. Such testimonials must be in a form which clearly indicates the author's authority, expertise, and knowledge of the beneficiary's achievements; or
6. Evidence that the beneficiary has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence. 

Conclusion

This article does not provide legal advice.  The regulations pertaining to the O-1 visa are complex and the documentation required is sizable.  The guidelines listed in this article are general; each beneficiary’s particular case has its own set of facts which may require a different process than what is outlined above.  Therefore, it is highly encouraged to discuss your specific needs with an attorney specializing in U.S. immigration laws.  Please contact us for a consultation.