O-1 Workers of Extraordinary Ability

What is Washington University’s policy on assisting scholars in getting O-1 visas?

Since the O-1 requires proof of sustained national or international acclaim for extraordinary ability or achievement, the applicant must meet a very high standard to qualify for this status. The O-1 visa is designed so that the majority of foreign nationals do not qualify for it.

Because of the difficulty in obtaining O-1 status and because of the amount of time and effort required to put together an acceptable application, Washington University will not recommend this visa type unless no other options are available. If the request for the O-1 is being made because a scholar has a J-1 two-year home residence requirement and thus is not eligible for an H-1B, there must be a viable plan for how this requirement will be fulfilled or waived. All petitions filed on behalf of the University must be discussed with the Director of the Office for International Students and Scholars (OISS) prior to beginning the process for the O-1.

If a department is interested in pursuing O-1 status for an employee, the departmental Business Manager should speak with the Director of the OISS. Because of the heavy burden of documentation required for the O-1, outside legal counsel will be required to file this petition and only outside legal counsel that has been approved by the Office of General Counsel in advance will be assigned. An O-1 petition is considered the employer’s application, and thus must be coordinated through the OISS. All billing for the attorney fees will be through the University.

What is O-1 Status?

O-1 status is for the employment of foreign nationals who have received national or international acclaim for extraordinary ability in the sciences, arts, business, education or athletics. It is also for foreign nationals who have achieved national or international acclaim for extraordinary achievement in the motion picture or television industry.

Who is qualified for O-1 status?

To qualify for an O-1, an applicant must meet each of the following three criteria:

  1. He/she has extraordinary ability within one of the broad fields of endeavor (science, art, business, education, athletics, motion pictures, or television).
  2. His/her extraordinary ability has been demonstrated by sustained national and international acclaim.
  3. He/she will work in the field of his or her area of extraordinary ability.

How is qualification for O-1 status proven?

Proving extraordinary ability requires extensive documentation unless the employee has won a prize of international acclaim such as a Nobel Prize, an Academy Award, or a Director’s Guild Award. Otherwise, evidence must be submitted to show that the employee has sustained international and/or national acclaim in the field of endeavor. USCIS gives several suggested categories of evidence, but other evidence can be provided.

The O-1 also requires an advisory opinion written by “an appropriate U.S. peer group (which could include a person or persons with expertise in the field) labor and/or management organization,” to provide evidence that he or she is extraordinary. The advisory opinion should describe the employee’s ability and achievements in the field, specify the duties to be performed, and state whether the position requires the services of someone of extraordinary ability.

The employer must also describe what work the employee will be engaged in and it must be related to the field of endeavor and comply with Department of Homeland Security regulations.

What are the requirements of O-1 status?

  1. There is a heavy burden of documentation to apply for O-1 status, and the advisory opinion requirement is often difficult to meet.
  2. O-1 status is employer and employment specific. The O-1 scholar may only work for his/her sponsor in the approved employment after the O-1 petition is approved.
  3. The employer is obligated to pay the scholar’s return transportation home, if employment is terminated by the employer before the expiration of the O-1.

What is the process of applying for an O-1 or extending O-1 status?

  1. If a department is interested in pursuing O-1 status, the Business Manager should speak with the Director of the OISS. The department head will need to approve the referral of the case to an outside immigration attorney and to having the charges billed back to the department.
  2. The petition for O-1 employment can be filed with United States Citizenship and Immigration Services (USCIS) up to one year before the expected start date.
  3. O-1 status can initially be obtained for a three-year period and then extended in one year increments indefinitely, so long as the foreign national is engaged in the approved O-1 employment.
  4. O-1 extensions must be filed every year, after the initial three-year period.

Are there issues with an O-1 applying for permanent residence?

O-1 status allows for dual intent. This means that someone in O-1 status who is eligible can apply for permanent residence without jeopardizing his or her current O-1 status.

What status do an O-1 scholar’s dependents have?

Dependents of O-1 status holders have O-3 status. Spouses and unmarried children under the age of 21 may be classified as dependents. Dependents in O-3 status are not allowed to work but are allowed to study.

Note about change of status from J-1 to O-1

Foreign nationals who wish to pursue O-1 status because they are subject to the Two-Year Home Residence Requirement based on a prior stay in J status are not eligible to file an application with USCIS to change status to O-1. This does not mean that a J-1 with the Two-Year Home Residence Requirement cannot become an O-1. If the applicant is subject to the home residence requirement, the application for the O-1 would be filed with USCIS and, if approved, the employee would need to go to a U.S. consulate abroad to obtain the O-1 visa, re-enter the U.S. as an O-1 and take up the O-1 employment.

For foreign nationals who are subject to the Two-Year Home Residence Requirement, obtaining the O-1 visa is an added burden in addition to filing a petition with USCIS proving eligibility for O-1 status. Even if the O-1 status is approved, the application for the visa from the Department of State is considered a separate application and the issuance of the visa is not guaranteed.