O-1A / O-1B extraordinary ability work visa

Wang Law Firm, LLC · David Wang, Managing Attorney

The O-1 is the U.S. nonimmigrant work visa for foreign nationals with extraordinary ability or extraordinary achievement. Unlike the H-1B, the O-1 has no annual cap and no lottery, doesn't require any particular degree, and can be filed year-round. It looks at your achievements and recognition in your field.

The O-1's limits: a U.S. employer or agent must file the petition for you, and you can only do the work listed in the petition; it's a temporary visa and doesn't lead directly to a green card. But for many people, the O-1 is an important bridge for working in the U.S. while building evidence for a later EB-1A.

O-1 categories

• O-1A: extraordinary ability in the sciences, education, business or athletics.
• O-1B: extraordinary ability (distinction) in the arts, or extraordinary achievement in the motion picture or television industry.
• O-2: support personnel who accompany an O-1 artist or athlete and are an integral part of the performance or event.
• O-3: spouses and unmarried children under 21 of O-1 and O-2 holders.

Who it suits

• Researchers, engineers, entrepreneurs and executives with strong achievements and recognition who don't want to, or can't, go through the H-1B lottery;
• Professionals in the arts, such as music, dance, fine art, design, photography, fashion and culinary arts;
• Film and TV professionals such as directors, actors, screenwriters and cinematographers;
• Professional athletes and coaches;
• F-1 graduates whose OPT is about to end, who weren't selected for H-1B, and who already have strong achievements.

O-1A standards

One way to qualify is a major, internationally recognized award (at the level of a Nobel Prize). Otherwise, you need to meet at least 3 of these 8 criteria:

1. Nationally or internationally recognized prizes or awards;
2. Membership in associations that require outstanding achievements of their members;
3. Published material about you and your work in professional or major media;
4. Judging the work of others;
5. Original scientific, scholarly or business-related contributions of major significance in your field;
6. Authorship of scholarly articles in professional journals or major media;
7. Employment in a critical role at organizations with a distinguished reputation;
8. A high salary or remuneration, earned or to be earned, compared with others in the field.

These criteria are broadly similar to EB-1A (see the EB-1A guide for the evidence each one requires, with examples). The difference is that O-1A is a nonimmigrant visa; USCIS likewise weighs the evidence as a whole after 3 criteria are met. If the criteria don't readily apply to your occupation, you can submit comparable evidence.

O-1B standards

The bar for "distinction" in the arts is somewhat lower than for O-1A: it means a high level of skill and recognition substantially above that ordinarily encountered, so that you are recognized as leading or well known in the field. The "extraordinary achievement" bar for film and TV is higher.

One way to qualify is having received, or been nominated for, a significant national or international award, such as an Academy Award, Emmy, Grammy or Directors Guild Award. Otherwise, you need to meet at least 3 of these 6 criteria:

1. Having performed (or going to perform) a lead or starring role in productions or events with a distinguished reputation, evidenced by reviews, advertisements, contracts and so on;
2. National or international recognition, such as critical reviews or coverage of you in major media;
3. Having performed (or going to perform) a lead, starring or critical role for organizations with a distinguished reputation;
4. Major commercial or critically acclaimed successes, such as box office receipts, ratings or chart results;
5. Significant recognition of your achievements from organizations, critics, government agencies or recognized experts in the field;
6. A high salary or remuneration, earned or to be earned, compared with others in the field.

For O-1B in the arts (but not film and TV), comparable evidence can also be submitted when the criteria don't readily apply.

Who files: an employer or an agent

You can't file an O-1 for yourself. A U.S. petitioner must file Form I-129:

• A U.S. employer: this can include a U.S. company you helped set up, but the company must genuinely exist as a separate entity and employ you.
• A U.S. agent: this can be a broker or manager representing several employers, or an agent acting for a foreign employer. If you'll work for several organizations or take part in several events, you usually file through an agent, with a complete itinerary of events and the terms of the contracts or agreements with each party.

The petition must include the employment contract or a written summary of the oral agreement, describing the work and its terms.

Advisory opinion

An O-1 petition generally needs a written advisory opinion (consultation) from a peer group, labor organization or management organization in the relevant field, assessing your ability and whether the proposed work requires someone of extraordinary ability. O-1B petitions in film and TV usually need opinions from the relevant union and management organization. If no appropriate peer group exists, you can explain that and submit other evidence, and USCIS will decide on that basis. The advisory opinion isn't binding, but leaving it out is a common reason for RFEs.

The process

1. Assess whether your achievements can meet the O-1A or O-1B standards, and decide on the petitioner (employer or agent);
2. Prepare the contracts and itinerary, and obtain the advisory opinion;
3. Gather evidence and write the petition letter;
4. The petitioner files the I-129. Premium processing is available for O-1; for the fee and time frame, rely on current USCIS rules;
5. After approval: if you're in the U.S. and eligible, you can change status directly; if you're abroad, you get the O-1 visa at a U.S. embassy or consulate interview and then enter.

Validity and extensions

• The initial approval is for up to 3 years, limited to the time needed to complete the activities in the petition;
• After that, you can apply for extensions to continue the original activities or for new ones, up to 1 year at a time;
• The O-1 has no overall time limit: as long as you still qualify and still have qualifying work, you can apply to extend.

If you change employers, the new employer needs to file a new I-129. For filing fees and processing times, see How to check immigration filing fees and processing times.

Dependents: O-3

Your spouse and unmarried children under 21 can apply for O-3 status, for the same period as the principal. O-3 dependents cannot work in the U.S., but they can attend school. A spouse who wants to work needs to obtain a work-authorized status of their own.

O-1 as a bridge to a green card

The O-1 isn't a statutory "dual intent" visa, but under the immigration regulations, the fact that an employer has an approved labor certification or has filed an employment-based immigrant petition for you is not, by itself, a ground for denying an O-1 petition or extension. So a common path is to work in the U.S. on O-1 while continuing to build your record, and file for EB-1A or NIW at the right time. Even so, at an O-1 visa interview at a consulate, the consular officer may still ask about your intentions, and you should answer truthfully.

Common mistakes

• Assuming the O-1 bar is low. O-1A criteria are similar to EB-1A, and the evidence likewise needs quality, not just quantity.
• Submitting a single employment contract while planning to work for several organizations. Arrangements with several employers or events need to go through an agent with a complete itinerary.
• Overlooking the advisory opinion.
• An O-3 spouse working in the U.S. This violates their status.
• Doing work outside the petition after approval. The O-1 only allows the activities described in the petition.

Compared with similar visas

For H-1B, see H-1B specialty occupation visa.

Common questions

Related reading

• EB-1A extraordinary ability green card: a complete guide
• H-1B specialty occupation visa
• F-1 student visa and OPT
• USCIS: O-1 Visa: Individuals with Extraordinary Ability or Achievement

This article is general information and is not legal advice. Laws and policies can change; rely on the latest official information and on an attorney's advice for your specific situation.