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VISAS FOR INDIVIDUALS WITH
EXTRAORDINARY ABILITY

By Mark Ivener, Attorney

The O-1 non immigrant visa category applies to foreign nationals of extraordinary ability in the arts, athletics, sciences, education, business, or the motion picture or television industry who are coming to the United States to perform temporary services relating to an event or events. The O-2 visa is additionally available to accompanying foreign nationals who are coming to assist in the artistic or athletic performance of a foreign national of extraordinary ability.

THE O-1 VISA

Who Is Eligible?
Extraordinary ability means that the foreign national has reached a level of expertise indicating that he or she is one of a small percentage who have risen to the very top of his or her field of endeavor. In addition, the position the foreign national is coming to fill must require the services of an individual of extraordinary ability.

The “arts” may also include foreign nationals in the motion picture or television industry. To qualify for an O-1 visa, individuals in this industry are held to a slightly different standard that others applying for an O-1 visa. They must document “extraordinary achievement” through a demonstrated record of “distinction” or prominence. “Distinction” means a high level of achievement and skill substantially above that ordinary encountered, to the extent that the foreign national in question is considered renowned, leading, or well-known in the field.

How To Apply
To establish that the foreign national has extraordinary ability in athletics, sciences, education and business, the petition must be filed along with supporting documentation that demonstrates sustained national or international acclaim and recognition. The foreign national may present evidence of receipt of a major, internationally recognized award, such as a Nobel Prize, or in lieu of such award, the foreign national may also qualify by submitting at least three (3) of the following forms of documentation:

1. Documentation of the receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor.

2. Documentation of membership in associations in the field, which requires outstanding achievements as judged by recognized international experts;

3. Published materials in professional or trade publications or newsletters about the foreign national and his/her work in the field;

4. Evidence that the foreign national has participated on a panel, or individually, as a judge of the work of others in the field or an allied field;

5. Evidence of original scientific or scholarly research contributions of major significance in the field;

6. Evidence of authorship of scholarly articles in the field in professional journals or other major media; or

7. Evidence the foreign national commands a high salary or other high remuneration for services.

However, in order to qualify as a foreign national of extraordinary achievement in the motion picture or television industry, or as a foreign national of extraordinary ability in the field of arts, the foreign national may demonstrate his or her record of extraordinary achievement with the following:

1. Evidence that the foreign national 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

2. Documentary evidence of at least three (3) of the following:

a) Evidence that the foreign national has performed or will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidences by critical reviews, advertisements, publicity release, publications, contracts, or endorsements;

b) Evidence that the foreign national has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspaper, trade journals, magazines, or other publications;

c) Evidence that the foreign national has performed in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publication, or testimonials;d) Evidence that the foreign national 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, credit for original research or product development, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers, or other publications;

e) Evidence that the foreign national has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the foreign national is engaged; or

f) Evidence that the foreign national has commanded or now commands a high salary or other substantial remuneration for services in relation to others in the field, as evidence by contracts or other reliable evidence.
Also, before the USCIS can approve an O-1 visa petition an appropriate peer group, or labor and/or management organization, must provide a written advisory opinion regarding the nature of the work to be done by the foreign national, and the foreign national’s qualifications for such work.

DURATION OF THE VISA
An O-1 visa may be valid for the period necessary to accomplish the event or activity, but must not exceed three years. Extensions of one year may be obtained indefinitely.
Should the foreign national’s employment terminate for other than voluntary resignation, the employer is responsible for the reasonable cost of return transportation of the foreign national to his or her last place of residence prior to his or her entry into the United States.

STATUS OF SPOUSE AND MINOR CHILDREN
A spouse and unmarried minor children of an foreign national who holds an O-1 visa are eligible for O-3 visas. They may not accept employment while in the United States while on an O-3 visa.

Disclaimer:  Nothing on these pages should be taken as legal advise for any individual case or certain situation.  The information is general and should not be relied on upon for any specific situation.  For legal advice, please contact one of our attorneys.

All content is copyrighted by IVENER & FULLMER LLP 2008.  All rights reserved.  No portion of this article may be duplicated without permission.  Services relating to immigration and naturalization provided by Ivener & Fullmer LLP are provided by active members of the State Bar of California or by a person under the supervision of active members of the State Bar of California.

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