Extraordinary Ability Visa – O visa

April 16, 2018
Linda M Kaplan

Immigration law provides for a visa for foreign nationals to allow them to come to the U.S. on a temporary basis if they can prove that they possess extraordinary ability. The O-1A visa is for those with extraordinary ability in the sciences, education, business or athletics. The O-1A does not apply to those with extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry. Those in the arts (including yes – Models) or motion picture or TV industry can apply for an O-1B visa.

For the O-1 A the applicant must proved that they have received a major, internationally- recognized award, such as a Nobel Prize.  I have never represented a client with a Nobel Prize or others such as the Pulitzer Price, an Academy Award or Olympic Gold Metal but I have successfully represented many clients who qualified this visa.  Without a Nobel Price or other major, internationally recognized award, the applicant must provide proof of at least three of the following”

  • Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor
  • Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field
  • Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought
  • Original scientific, scholarly, or business-related contributions of major significance in the field
  • Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought
  • A high salary or other remuneration for services as evidenced by contracts or other reliable evidence
  • Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought
  • Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation

If the above criteria do not readily apply to the beneficiary’s occupation, the applicant may submit comparable evidence to establish eligibility.

For the O-1 B the applicant may qualify based on having has received, or been nominated for, significant national or international awards or prizes in the particular field, such as an Academy Award, Emmy, Grammy or Director’s Guild Award. or evidence of at least (3) three of the following:  

  • Performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements
  • Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications
  • Performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials.
  • A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or 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
  • Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the beneficiary is engaged, with the testimonials clearly indicating the author’s authority, expertise and knowledge of the beneficiary’s achievements
  • A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence

If the above standards do not readily apply to the beneficiary’s occupation in the arts, the petitioner may submit comparable evidence to establish eligibility (this exception does not apply to the motion picture or television industry).

I have counseled clients who believed that they had extraordinary ability and when I sat down with them and reviewed their achievements, I had to advise them that the O visa would not work for them. They may have local awards but not national or international awards. They may have been listed in Who’s Who but that is not considered by immigration to suffice.  Likewise, academic scholarships or grants will not be considered as one of the three criteria. Team awards may be helpful but performance in award winning programs is less helpful than awards presented to individuals.

I have also counseled clients who didn’t consider themselves extraordinary but did meet the criteria and were approved. To evaluate the strength of a potential application I start with asking for a resume (CV) and then sit down with the client and go through the criteria to see what documentation was available to prove the achievements.

The O visa may be issued for up to three years. For those who wish to live in the U.S. on a permanent basis, those who meet the criteria for the O visa are likely to meet the criteria for permanent residence under the Employment based First (EB-1) Preference category. Either the O visa or EB-1 petitions are very exacting and time intensive both on the part of the client and the attorney.

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