General

One of the most interesting non-immigrant categories available under the Immigration and Nationality Act ("INA") is the O category for aliens of extraordinary ability. O-1 status is available to aliens of extraordinary ability in the arts, sciences, education, business and athletics. O-2 status is available to aliens who seek entry to accompany an O-1 alien working in the field of arts or athletics and whose essential skills make them integral to the performance. O-3 status is available to dependents of O-1 or O-2 aliens. Only O-1 and O-3 status will be discussed here. O-2 status is discussed here.

An O-1 alien is defined at §101(a)(15)(O)(i) of the Immigration and Nationality Act ("INA") as an alien who:

has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim or, with regard to motion picture and television productions a demonstrated record of extraordinary achievement, and whose achievements have been recognized in the field through extensive documentation, and seeks to enter the United States to continue work in the area of extraordinary ability.

While the O-1 category clearly extends to many fields of endeavor, it most commonly sought by individual aliens having extraordinary ability in the field of arts. The reason for this is that aliens in science, education, business, athletics will often qualify more readily under other visa categories. For example, aliens in science, education or business may qualify as intracompany transferees under L-1, specialty workers under H-1B or NAFTA professionals under TN. Similarly, athletes may also qualify under the P-1 category, which includes "internationally recognized" athletes competing individually or as part of a team. Establishing international recognition under the P-1 standard is easier than satisfying the threshold applied to athletes in the O-1 category. Members of internationally recognized entertainment groups also qualify under P-1, although the threshold applied to artists (other than those in motion picture or television) in the O-1 category is roughly the same as the threshold applied in P-1 cases.

"Extraordinary" Defined

For O-1 purposes, the "extraordinary" standard is defined differently, depending upon the alien's field of endeavor:

1. For aliens in science, education, business and athletics, the term "extraordinary ability" is defined in Title 8 of the Code of Federal Regulations (the "Immigration Regulations") as a level of expertise indicating that the person is one of the small percentage of who have arisen to the very top of their field of endeavor".

2. For artists and entertainers (other than those in the motion picture or television field), the term "extraordinary ability" means only distinction. Distinction is a high level of achievement in the arts evidenced by a degree of skill and recognition substantially above that normally encountered to the extent that a person described as prominent is renowned, leading or well-known in the field of arts.

3. For artists and entertainers entering in connection with motion picture or television productions, the separate standard of "extraordinary achievement" applies. This term means a very high level of accomplishment in the motion picture or television industry evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that the person is recognized as outstanding, leading, or well-known in the motion picture or television industry. Extraordinary achievement is considered a lower standard than that which is applied to aliens in science, education, business and athletics but a higher standard than which is applied to other artists and entertainers.

Evidence Required

To qualify as an alien of extraordinary ability in science, education, business or athletics, the Immigration Regulations indicate that the petitioner must:

1. have received a major, internationally-recognized award, such as the Nobel Prize, or

2. meet at least three of the following requirements:
   1. receipt of 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;

   3. published material in professional or major trade publications or major media about the alien concerning the alien's work in the field;

   4. participation on a panel, or individually, as a judge of the work of others in the field;

   5. scientific, scholarly, or business-related contributions of major significance in the field;

   6. authorship of scholarly articles in the field in professional journals or other major media;

   7. employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation;

   8. high salary or other remuneration commanded by the alien for services; or

   9. other comparable evidence;

In the case of artists and entertainers generally, the Immigration Regulations indicate that he or she must:

1. have been nominated for or have received a significant national or international award or prize in the particular field such as an Academy Award, an Emmy, a Grammy, or a Director's Guild Award, or

2. meet at least three of the following requirements:
   1. that the alien has or will perform a lead or starring role in productions or events which have a distinguished reputation;

   2. that the alien has achieved national or international recognition for achievements;

   3. that the alien has performed a lead, starring or critical role for organizations and establishments that have a distinguished reputation;

   4. that the alien has a record of major commercial or critically acclaimed success;

   5. that the alien has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged (such testimonials must clearly indicate the author's authority, expertise, and knowledge of the alien's achievements);

   6. that the alien has commanded or now commands a high salary or other substantial remuneration for services in relation to others in the field (as evidenced by contracts or other reliable evidence); or

   7. other comparable evidence.

The same evidence will be submitted cases involving artists and entertainers working in motion picture or television productions, although there is no provision for the submission of "comparable evidence" in such cases. The Immigration & Naturalization Service ("INS") will apply the higher threshold of "extraordinary achievement" to this evidence in the case of motion picture or television artists.

Petition Required

An O-1 petition may only be filed by a United States employer, a United States agent, or a foreign employer through a United States agent. The petition may not be filed more than six months before the actual need for the alien's services.

A United States agent may file a petition in cases involving workers who are traditionally self-employed or workers who use agents to arrange short-term employment on their behalf with numerous employers, and in cases where a foreign employer authorizes the agent to act in its behalf. A United States agent may be:

1. the actual employer of the beneficiary;

2. the representative of both the employer and the beneficiary; or

3. a person or entity authorized by the employer to act for, or in place of, the employer as its agent.

A petition filed by an agent is subject to the following conditions:

1. An agent performing the function of an employer must provide the contractual agreement between the agent and the beneficiary which specifies the wage offered and the other terms and conditions of employment of the beneficiary.

2. A person or company in business as an agent may file the petition involving multiple employers as the representative of both the employers and the beneficiary, if the supporting documentation includes a complete itinerary of the event or events. The itinerary must specify the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishments, venues, or locations where the services will be performed.

3. A contract between the employers and the beneficiary is required. However, an agent performing the function of an employer must provide a copy of the contract between itself and the alien but will not be required to produce contracts between its clients and the alien.

4. A foreign employer who, through a United States agent, files a petition for an O-1 nonimmigrant alien is responsible for complying with all of the applicable employer sanctions.

Consultations

O-1 Petitions require consultations with an appropriate peer group (which could include a person or persons with expertise in the field), labor or management organization regarding the proposed work and the beneficiary's qualifications. In the case of O-1 consultations for aliens of extraordinary achievement in motion picture or television, consultations from both a labor consultation and management organization are required.

The petitioner must submit the required consultation(s) with the petition or show that an appropriate peer group, labor organization or management organization does not exist. "Peer Group" means a group or organization consisting of practitioners of the alien's occupation . Where a collective bargaining representative for the beneficiary's occupation classification is present at the workplace, this representative is the appropriate labor organization.

The Operations Instructions to the INA lists a non-exhaustive list of peer groups, labor organizations and management organizations which have agreed to provide advisory opinions. Certain fields of endeavor for which consulting entities do not exist are listed as well. While this list is non-exhaustive and other peer groups, labor organizations or management organizations may be acceptable, it is advisable to use this list as a starting point.

Although the petitioner can submit an advisory opinion from a non-labor organization (except for aliens in the motion picture or television industry), in such cases the INS will still request a labor consultation. It will forward a copy of the petition and supporting documentation to the national office of the appropriate union or to the appropriate bargaining representative at the workplace, if there is one. This can delay processing of the petition, so it is advisable to obtain and submit a labor consultation with the petition. Labor consultations obtained by the petitioner prior to filing may be submitted in full satisfaction of the O-1 consultation requirement.

If the advisory opinion is not favorable to the petitioner, the advisory opinion must set forth a specific statement of facts which supports the conclusion reached in the opinion. If the advisory opinion is favorable to the petitioner, it should describe the alien's ability and achievements in the field of endeavor, describe the nature of the duties to be performed, and state whether the position requires the services of an alien of extraordinary ability. A consulting organization may also submit a letter of no objection in lieu of the above if it has no objection to the approval of the petition. Although consultations are advisory and are not binding on the INS, they are often given great evidentiary weight.

The requirement of a consultation may be waived if the beneficiary is an alien of extraordinary ability in the field of arts and is seeking entry under O-1 within two years of a previous consultation .

Expeditious Handling for O-1 Aliens in the Arts, Entertainment and Athletics

In a case where the alien will be employed in the field of arts, entertainment, or athletics, and the INS has determined that a petition merits expeditious handling, the INS will contact the appropriate labor and/or management organization and request an advisory opinion if one is not submitted by the petitioner. The labor and/or management organization has 24 hours to respond to the request. The INS will adjudicate the petition after receipt of the response from the consulting organization. The labor and/or management organization shall then furnish the INS with a written advisory opinion within 5 days of the initiating request. If the labor and/or management organization fails to respond within 24 hours, the INS will render a decision on the petition without the advisory opinion.

Dual Intent

The doctrine of dual intent appears to be recognized for O-1 aliens, at least under the INS regulations. According to 8 CFR §214.2(13), the approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an O-1 petition, a request to extend such a petition, or the alien's application for admission, change of status, or extension of stay. The alien may legitimately come to the United States for a temporary period as an O-1 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States. Please refer to the article on dual intent for additional information.

Effect of Labor Disputes

The O-1 category is also subject to "strike breaker" provisions. Therefore, if the secretary of labor certifies that a strike, labor dispute involving a work stoppage is in progress in the alien's occupation at the place where the alien will be employed, and that the employment of the alien would adversely affect the wages and working conditions of U.S. citizens and lawful permanent residents, the petition will be denied .

Duration of Status

There is no specific limitation on the period of stay for O nonimmigrants as the initial period of stay can be for the time necessary to complete the event or activity or group of events or activities for which the nonimmigrant is admitted, up to three years. "Event" is defined as including an activity such as a scientific project, conference, convention, lecture series, tour, exhibit, business project, academic year, or engagement. According to the definition, in the case of an O-1 athlete the event could be the alien's contract itself. A group of related activities may also be considered an event. The activity may include short vacations, promotional appearances, and stopovers which are incidental and/or related to the event.

An O-1 alien may be admitted to the United States for the validity period of the petition plus a period of ten days before the validity period begins and ten days after the validity period ends . However, the alien may can only work during the validity period itself . Extensions of stay, to complete the event for which he or she was originally admitted, may be authorized in increments of up to one year.

Employer Liability to Pay for Return Transportation in the Event of Early Termination

Should the employment of an alien who entered under O-1 status terminate, for reasons other than voluntary resignation, the employer and the petitioner (if different) are jointly and severally liable for the reasonable cost of return transportation for the alien to his or her last place of residence . This does not apply to an alien who entered under another category and subsequently adjusted status to O-1.

Dependents of O-1 Aliens

The spouse and unmarried minor children of the O-1 alien are entitled to O-3 nonimmigrant classification, subject to the same period of admission and limitations as the alien beneficiary, if they are accompanying or following to join the alien beneficiary in the United States. Neither the spouse nor a child of the alien beneficiary may accept employment unless he or she has been granted employment authorization.

Conclusion

While the O-1 category has broad application, it will generally be used where individual artists and entertainers are seeking admission to the United States on a temporary basis.