The O-1 is a temporary work visa for "aliens of extraordinary ability." This visa category is available to accomplished people who work in the arts, in the sciences, business, education and athletics, or in motion pictures and television. In practice, the O-1 visa can cover almost any field of endeavor, as long as you can prove that you have achieved substantial national or international recognition in your field.
Do I need a sponsor?
Yes, the O-1 visa category does require you to have a U.S. employer or agent to file a petition on your behalf. It does not permit pure self-employment.
However, if you have a business entity in the United States, that already has a US partner or employees who are work-authorized, then your company may be able to file a petition on your behalf, depending on the type of company and the nature of the work you intend to do. If you are essentially a freelance worker, then having your own company sponsor you will present many of the same issues as a petition by an agent. The more established the company is, and the more US employees, clients and ongoing work it has, the more likely it will be a viable sponsor.
Having an agent file as your U.S. petitioner is typically a good idea if you are in a field where obtaining new jobs or selling your work through an agent is the norm, (for example, if you are an actor, a model, or an author), and where the agent can provide contracts of employment to prove the terms of the work offered to you in the U.S. There are limited exceptions to this rule, in fields such as advertising, where the industry-standard time frame is generally too short to obtain signed contracts with enough lead time to file a petition, but even in those situations, the agent must be able to make certain guarantees about the terms and scope of work available to you.
What is an Advisory Opinion?
In addition to evidence of your extraordinary ability, an O-1 petition must be accompanied by an advisory opinion letter from the relevant labor union, professional organization, or individual experts in your field, consulted prior to filing.
Because this visa category was created with the performing arts and professional sports in mind, if you work in any field where there is a labor union or league governing employment in the field, that entity must be consulted, and should provide a neutral or favorable opinion with respect to the offer of temporary employment in the United States. In the film and television industry, two advisory consultations must be obtained, one from a labor union and another from a management organization.
Wherever there is no labor union, a professional society should be consulted. If you work in a field where there is no union, and no professional society or association that is relevant to your work, then individual experts in the field may be consulted.
All O-1 petitions must be submitted with a current peer advisory letter, with one exception: a petition to renew or extend O-1B status for an alien of extraordinary ability in the arts may re-use a peer advisory opinion letter that was issued within the past two years.
What kind of proof will I need?
“Extraordinary” is a very subjective word, but the immigration service has published three detailed sets of regulatory standards. The highest standard is for extraordinary ability in the sciences, education, business and athletics. A second is for extraordinary ability in the arts, and a third is for extraordinary achievement in the motion picture and television industry. The arts can include any field of creative endeavor, including fine arts, visual arts, performing arts, culinary arts, etc.
For jobs that combine original creative work with business judgment, such as fashion and interior design, it is common to seek classification for extraordinary ability in both the arts and business. This strategy also applies to jobs such as art dealer and literary agent that require both artistic judgment of the merits of other people’s creative work, as well as business judgment. Meeting the higher standard required for business can pave the way for a successful residence case.
Each of these standards requires proof of either a major, widely recognized international award, such as an Academy Award or a Nobel Prize, or at least three types of other evidence, which will vary widely depending on your field of endeavor. It may include documentation of lesser awards, press reviews or coverage of your work, your own publications, public speaking engagements, a high rate of pay, etc. As there are three different standards, you should meet with an attorney to discuss your accomplishments and professional activities in depth, to determine what kinds of documentation will be most relevant in your case.
A. Business, Science, Education or Athletics
Extraordinary ability in the sciences, education, business or athletics means a level of expertise indicating that the person is one of the small percentage who have risen to the very top of the field of endeavor. The individual must demonstrate sustained national or international acclaim and recognition for achievement in the field of endeavor, by providing evidence of:
(A) Receipt of a major, internationally recognized award, such as the Nobel prize; or
(B) At least three of the following:
(1) Nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
(2) Membership in associations in the field which require outstanding achievements of their members, as judged by recognized national or international experts;
(3) Published material in professional or trade publications or major media about the alien, relating to the alien’s work in the field (including title, date, author and name of the publication, with translation if original is not in English)
(4) Evidence of participation, on a panel or individually, as a judge of the work of others in the same field or an allied field of specialization;
(5) Evidence of the alien’s original scientific, scholarly or business-related contributions of major significance to the field of endeavor;
(6) Authorship of scholarly articles in professional journals, or articles by the alien in major media (including title, date, author and name of the publication, with translation if original is not in English);
(7) Evidence that the alien has been employed in a critical or essential capacity for organizations that have a distinguished reputation;
(8) Evidence that the alien has commanded a high salary or other remuneration for services.
(C ) If the above criteria do not readily apply to the occupation, the petitioner may submit comparable evidence to establish eligibility.
B. The Arts
Extraordinary ability in the arts means distinction. The individual’s prominence in the field of endeavor must be demonstrated by:
(A) Receipt of, or nomination for, significant national or international awards or prizes in the field, such as an Academy Award, an Emmy, a Grammy or Director’s Guild Award; or
(B) At least three of the following:
(1) Evidence of past or prospective services as a lead or starring participant in productions or events which have a distinguished reputation, as evidenced by critical reviews, advertisements, press releases, contracts or endorsements;
(2) Evidence of national or international recognition in critical reviews by or about the individual in major media;
(3) Evidence of past or prospective services in a lead, starring or critical role for organizations that have a distinguished reputation, as evidenced by press coverage and testimonials;
(4) A record of major commercial or critical success, evidenced by title, rating, box office receipts, or other occupational achievements reported in trade press or major media;
(5) Evidence of significant recognition from critics, organizations, government agencies, or other recognized experts in the field. Testimonials must be in a form which clearly indicates the author’s authority, expertise, and knowledge of the alien’s achievements;
(6) Evidence of a high salary or other substantial compensation for services, in relation to others in the field.
(C) If the above criteria do not readily apply to the occupation, the petitioner may submit comparable evidence to establish eligibility.
C. Film & Television
Extraordinary achievement in the motion picture and television industry means a
very high level of accomplishment, and 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 field. This must be demonstrated by the following types of evidence:
(A) Evidence that the alien 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
(B) At least three of the following:
(1) Evidence of past and prospective performance of services as a lead or starring participant in productions or events which have a distinguished reputation, as evidenced by critical reviews, advertisements, press releases, contracts or endorsements;
(2) Evidence of national or international recognition for achievements evidenced by critical reviews, interviews or other major media coverage of the individual and/or his or her work;
(3) Evidence of past and prospective performance of services in a lead, starring or critical role for organizations that have a distinguished reputation evidenced by press coverage, editorials, and/or testimonials;
(4) A record of major commercial or critical successes, as evidenced by title, ranking, standing in the field, box office receipts, motion picture or television ratings, and other occupational achievements reported in trade journals or major media;
(5) Evidence that the alien has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field.
Testimonials must be in a form which clearly indicates the author's authority, expertise, and knowledge of the alien's achievements;
(6) Evidence that the alien has commanded a high salary or will command a high salary or other substantial compensation for services in relation to other in the field, as evidenced by contracts, pay records or other reliable evidence.