Guidelines for Obtaining O-1 (Alien of Extraordinary Ability) Visa Status
O-1 status is available to persons of extraordinary ability in the sciences, business, athletics, and education. O-1 status is also available to persons of extraordinary ability in the arts, however, the standards are different.
O-1 status is an excellent option for some persons subject to the J-1 two year foreign residence requirement who are not eligible for H-1B (specialty worker) or L-1 (intracompany transferee) nonimmigrant visas. It is also an option for those who are not eligible for permanent resident status without obtaining a waiver or returning home for two years.
O-1 status is also sometimes a viable alternative to H-1B status where the employer is unwilling to comply with the H-1B requirement that the employer must post a public notice containing the wage to be paid an H-1B worker. Similarly, the O-1 option should be considered when an H-1B or L-1 visa holder is ineligible for further extensions and does not desire or can not obtain permanent residency.
An "extraordinary ability" O-1 visa applicant does not need to prove to the Department of Homeland Security (DHS) or to a U.S. Consul that he or she is not an intending immigrant and that he or she maintains a residence abroad. Qualifying for O-1 status is not particularly difficult for those who, according to their peers, have made outstanding contributions to their field such that they satisfy the DHS definition of extraordinary:
"One of the small percentages of persons who have risen to the very top of their field of endeavor such that they enjoy sustained national or international acclaim."
To qualify as a person of extraordinary ability there must be evidence that the visa beneficiary has earned acclaim by the receipt of a major internationally recognized award (Nobel Peace Prize, etc.) or at least three of the following:
- Receipt of lesser nationally or internationally recognized prizes or awards for excellence.
- Membership in associations in the field which require outstanding achievements of their members, as judged by recognized experts.
- Evidence of the beneficiary’s authorship of scholarly articles in his or her field, in professional journals, or other major media.
- Published material in professional or major trade publications or major media about the beneficiary and his or her work.
- Evidence of participation on a panel, or individually, as the judge of the work of others.
- Evidence in the form of letters or affidavits from prominent colleagues who can confirm the beneficiary’s original contributions of major significance to his or her field.
- Evidence that the beneficiary has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation.
- Evidence that the beneficiary has commanded and now commands a high salary or other compensation for services.
Even if three of the above forms of evidence are produced, O-1 status will not be accorded unless a "peer group" writes an advisory opinion based upon a review of the evidence to be submitted to the DHS which concludes that the beneficiary has risen to the top of his or her field of endeavor. The regulations of the DHS define a "peer group" as a "group or organization which is comprised of practitioners of the alien’s occupation who are of similar standing with the alien and which are governed by such practitioners." A "peer group" can be "a person or persons with expertise in the field."
Preparing and filing of an O-1 request will depend on the coordinated activities of the hiring department, UC International Services, and the beneficiary. An O-1 nonimmigrant visa petition, like other work-related visa petitions, is filed by a U.S. employer on behalf of an existing or prospective employee. Thus, an O-1 visa petition belongs to the employer and it entitles the visa holder to work only for the petitioning employer. Please note that it does not entitle the spouse or children of an O-1 visa holder to work. The intent of the application is to prove that the beneficiary is one of the small percentages of persons who have risen to the very top of their field. UC International Services will prepare the necessary immigration forms (I-129).
Export Control Issues
When hiring someone on O-1 status UC is required to certify the receipt of various export control regulations to determine whether an export license is required before controlled technology or technical data is released to a foreign national during the course of their employment. In response to this regulation hiring departments will be required to complete a "Checklist for Export Control Issues For Hiring International Workers" form and submit the form as part of the O-1 process. The form will need to be certified at the Department/Division Head level.
Step #1: The Hiring Department Must Furnish
The hiring department will have to prepare the following supporting documentation:
- A detailed letter to the Department of Homeland Security (DHS) indicating job title and salary for the beneficiary, value of benefits, and a description of the beneficiaries anticipated duties.
- A letter of reference in support of The University of Cincinnati’s O-1 petition on behalf of the beneficiary, as well as a description of the departments other staff in the field, including the curriculum vitae for any particularly outstanding researchers in the department must be attached. The curriculum vitae of the Department Head must also be attached.
- Copies of articles from the popular and professional press describing the University of Cincinnati, its work, and the competition and challenges it faces, for example in receiving federal grant moneys.
- The name of the University of Cincinnati’s Congressperson or Senator, and an indication whether the University has a relationship with him or her.
- A statement that the department will provide "return transportation abroad" in the event the O-1 employee is terminated before the expiration of his/her visa status.
- Complete and Submit the Export Controls Checklist
Step #2: The Beneficiary Must Furnish
The Beneficiary will have to compile the required supporting documentation as to his/her qualifications for the status including:
- Letters of reference from prominent colleagues who can confirm his/her original contributions of major significance to his or her field and otherwise help UC prove that beneficiary satisfies the DHS definition of extraordinary.
- The beneficiary will also have to produce a "peer group" or "expert" advisory opinion. The regulations of the DHS define a "peer group" as a "group or organization which is comprised of practitioners of the alien’s occupation who are of similar standing with the alien and which are governed by such practitioners." Alternatively, the advisory opinion can be issued by an expert in the field. A peer group should preferably be a labor or professional organization. The advisory opinion for O-1 extraordinary ability must describe the applicant’s ability and achievements in the field of endeavor, the nature of the duties to be performed, and whether the position requires somebody of extraordinary ability.
- A detailed description of the beneficiary’s past and ongoing work in the field.
- Copies of the beneficiary’s most important (full-length and abstract) articles from professional journals with a brief description of the significance of each article, as well as evidence of presentation of articles or lectures at conferences or seminars. Please note that any applications in a foreign language must be submitted to the DHS with certified translations, signed by the translator, using the following language: "I, (state name), hereby certify that I am competent to render a translation from the (state language) language to English language, and further that the foregoing is a true, complete and accurate translation of the (document being translated), dated (give date)."
- Copies of materials published in professional or major trade publications including, for example, citations to his or her work, or in major media about his or her work. Again, any publications in a foreign language must be submitted to the DHS with certified translations using the above-referenced language.
- Evidence of the beneficiary’s participation in a panel or individually, as the judge of the work of others in his field, for example, peer review of papers or other work of colleagues.
- The beneficiary’s degrees, along with any board certifications, awards, patents, memberships in professional
associations, evidence of completion of fellowships and other evidence of his or her qualifications. Again, any documents in a foreign language must be submitted to the DHS with certified translations using the above-referenced language.
- Copies of all documentation relating to the beneficiary’s and his or her immediate family’s immigration status, including copies of all certificates of eligibility (DS-2019 or I-20), all pages of passports, I-94 card (front and back) if your most recent entry to the U.S. was prior to April 30, 2013. If your most recent entry occurred after April 30, 2013, print out an electronic copy of the I-94 at http://www.cbp.gov/i94..
- If providing patient care, a copy of the license to practice medicine in the State of Ohio must be provided.
Step #3: O-1 Processing Procedures
Once the appropriate documentation from the hiring department and the beneficiary have been compiled, they must be brought to UC International Services with a check for $325.00 made out to the DHS. The O-1 application (I-129) will be compiled by UC international services and sent to the DHS in Lincoln, Nebraska. Generally, the DHS processes O-1 visa petitions more quickly than many other types of visa petitions. Usually, we receive a reply on an O-1 petition within one to two months of filing.
If the O-1 petition is approved, the beneficiary will receive O-1 status provided he or she has never been "out of status." If the beneficiary has been "out of status," or is a J-1 visa holder subject to the two-year home country rule, he/she will have to depart the U.S. to obtain an O-1 visa at a U.S. consulate or embassy. If the beneficiary has maintained status, he or she can go to the U.S. consulate / embassy in Canada or Mexico. If the beneficiary has violated status while in the U.S. or stayed beyond the authorized period of stay, he or she must apply for the visa in his/her home country.
A $1,225 premium processing fee is now in effect. Payment of the $1,225 processing fee will ensure that a decision will be made by the DHS within 15 days of receipt. Anyone wishing to use this option must notify UC international services of the intention when submitting the request by attaching a separate check for $1,225 made payable to the Immigration and Naturalization Service.