The O-1 for Persons with Extraordinary Ability: How Extraordinary is Extraordinary?

o-1 eligible person with extraordinary ability

With a few thousand “likes”, maybe even a million, a TED Talk under belt, or “going viral” for all that phrase encompasses nowadays, we live in a world where these things define more than just a few as extraordinary.  But are they enough for an O-1 visa?  This isn’t the type of visa a friend from college will typically get just after graduation and it’s definitely not for the one hit wonder. 

The O-1 doesn’t just assume you do your job – it says you slay at it!  If the U.S. immigration system had a red carpet of visas, this would be the velvet rope you’re stepping past.  In other words, the O-1 boils down to the difference between looking extraordinary and being extraordinary.

What is an O-1

The O-1 visa is for people with extraordinary ability. In U.S. immigration vernacular being extraordinary means having a demonstrated record of extraordinary ability in the arts, sciences, education, business or athletics that has been sustained by national or international acclaim.  It is for those who have a record of extraordinary achievement in the motion picture or television industry. 

For those in the arts it means having a high level of achievement 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; or is outstanding noble, or leading in film or television.

If you’re in the sciences, education, business, or sports, it means a level of expertise indicating that you are part of the small percentage of people who have risen to the very top of their field.

Theoretically, you’re a bad-ass!  Like Noble prize winners, or Grammy and BAFTA award-winning artists.  Ok, so you’re not a Justin Bieber or a Kate Winslet or an EGOT[1] like Whoppi Goldberg.  But you don’t have to be.  Don’t be dismayed by the theoretical, because even if you don’t fall into the likes of what most would consider the upper echelons of the sciences or the arts or the movies, you can still qualify as a person of extraordinary ability for O-1 purposes … you just have few hoops to jump through to get there.

O-1 Eligibility

Short of a Nobel Prize, persons in the science, business, or education wishing to apply for an O-1 must be able to demonstrate sustained acclaim by meeting at least three of the following evidentiary criteria:

  • Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
  • Membership in associations in the field, which require outstanding achievements of their members as judged by recognized national or international experts in their disciplines or fields;
  • Published material in professional or major trade publications or major media about the person relating to the person’s work in the field;
  • Participation on a panel, or individually, as a judge of the work of others in the same or similar field of specialization;
  • Original scientific, scholarly, or business related contributions of major significance;
  • Author of scholarly articles in professional journals or other major media;
  • Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation; or
  • The command of a high salary or will command a high salary or other renumeration for services.

If you want to qualify as a person in the arts as being prominent in your field or having extraordinary achievement in the film or television industry, and you don’t have a Grammy or a SAG or an Academy Award, then at least three of the following forms of documentation must provided:

  • Performance or will perform as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, ads, publicity releases, publications contracts, or endorsements;
  • Achieved national or international recognition for achievements by critical reviews or other published materials in major newspapers, trade journals, magazines, or other publications;
  • Performed or will perform as a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials;
  • A record of major commercial or critically acclaimed success as evidenced by indicators such as title, rating, standing in the field, box office receipts, motion picture or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications;
  • Receipt of significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field; or
  • The command of a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field.

Whether you’re in the arts, business, education, athletics, science, motion picture or television industry, you only have 3 hoops to jump through … see, not that hard, right!

Applying for an O-1

Ok, 3 hoops and then some: O-1 applicants must have a petitioner – a U.S. employer or agent – someone willing to be the sponsor of the visa.  Unfortunately, this is not the type of case that those who are traditionally self-employed can do on their own.

The petitioner must first file the case with the USCIS (United States Citizenship & Immigration Services) for approval before the beneficiary of the petition (aka the applicant) may apply for the O-1 visa at the U.S. embassy or consulate abroad, or O-1 status at the border if you’re a Canadian citizen.

Length of Stay

First time O-1 petitions that are approved may be granted a validity period of up to 3 years.  The applicant’s approved O-1 visa[2] and admission to the U.S. would be consistent with that time period.  

Prior to the expiration of the approved O-1, an extension may be filed, but the maximum time given would only be 1 year.

O-1 vs. Green Card

Does the O-1 lead to a green card, the golden question?  No, but ….  The O-1 is a non-immigrant intent classification, however, with dual-intent type qualities.  So, if the green card process has been started with an approved labor certification or a family- or employment-based petition for someone in O-1 status, they should not be penalized when extending or seeking admission in O-1 status.

What About Family Members?

Spouses and children may accompany an O-1 beneficiary.  They would apply for an O-3 visa or, if visa exempt, apply for admission to the U.S. in O-3 status.  However, work authorization is not permitted; although, they may attend school and study.

I’m not going to lie, unless you’ve reached star-studded fame, the O-1 eligibility requirements, on its face, appear quite daunting to overcome and that’s the tip of the iceberg, but it’s not an impossibility.  Many not so seemingly extraordinary people are in fact extraordinary in the own right, qualifying them for the O-1 visa.  Contact us to discuss whether you’re of O-1 caliber.

Disclaimer: The information provided in this blog post is for general informational purposes only and does not constitute legal advice.  While efforts are made to ensure the content is accurate and up to date at the time of publication, laws and regulations may change, and the information may no longer be current.  You should consult a qualified legal professional for advice specific to your situation.

[1] Persons who possess Emmy, Grammy, Oscar, and Tony awards.

[2] An O-1 visa may be issued for less than three years, depending on the reciprocity the foreign national’s country has with the United States.