The O-1 visa for extraordinary ability can be used for a variety of situations. There is a misconception that it is only for artists, when it really applies to all people who are recognized in fields like sports, academics, science and business, as well as art.
Unlike the H-1B or other employment-based visas, there is no deadline, restrictions on home countries, or cap on the number of applicants who can apply for an O-1 visa. Also unlike the H-1B, the O-1 gives you flexibility in terms of length of visas and renewability, in addition to opening the door to a self-sponsored green card – which means you would no longer be dependent on any employer. Dependence on one employer is problematic in that your employment and visa are tied together, and the moment employment stops, like if the employer decides unilaterally to terminate or goes bankrupt, then your visa also terminates effective immediately.
The traditional H-1B is an employment-based visa, which literally means your employer can go bankrupt, go out of business, close its doors, or just decide they don’t need you anymore and you are expendable. That means that your visa status also drops.
This puts H-1B recipients in difficult situations where they can potentially port to another employer, but only if they do so before they are terminated, to avoid being technically out-of-status.
That doesn’t happen with the O-1 if you do it through an agent relationship. The O-1’s “Agent Relationship” option allows applicants, if they have somebody or some agency that they trust who can serve as their agent, to work in a pseudo-independent fashion where the agent co-signs contracts of employment, thereby having more flexibility, but also not being tied to only one employer. That means if one employment relationship is cut, they don’t lose their visa status. This is particularly useful in professions where people are hired temporarily for tours or exhibitions, showcases and performances.
There are not many limitations in terms of profession for an O-1 visa. The standards that are used are very different from other visas, and it doesn’t necessarily have to do with ability, as much as it has to do with the level of recognition that people have in their field. That is exemplified in various ways, including:
– An article published about somebody in a distinguished publication.
– A scholarly article in trade magazines, academic magazines or scientific studies.
– Peer letters: These are expert letters, and those peers, through their reputations and their experience in the field, can be held out to be experts.
– Proof of high remuneration above industry averages, i.e. they’ve been paid high amounts compared to their peers for what they do.
– Participation as a judge of other people’s work.
– Critical role in organizations with a distinguished reputation.
These are all subjective standards that prove something through another channel, in other words, through an expert at the top of their field or above most of their peers. There are many different categories. An applicant only has to qualify in three of them in order to qualify as an artist, scientist, academic, business person, or professional of extraordinary ability.
I’ve been working on a lot of O-1 visas lately, with professionals, academics, business people and artists from all over the world. There is not limitation by country. There’s no annual cap. There’s no filing deadline. The adjudications are quick. If they do apply for a green card, they can pay for what’s called premium processing, which means they’ll have their petition adjudicated in 15 business days. It is also relatively easy to assess a case to judge whether it is a realistic possibility that there will be an approval, and to identify weak points that can be strengthened to bolster a petition and make it possible to apply for the visa with expectations of success.
A Recent Success Story: I was one of the first attorneys to get an O-1 visa for a tattoo artist. When I was reviewing his resume, I told him, “You qualify clearly in two categories, but we need one more.” I asked him if it would be possible for him to be selected as a judge of other people’s work at a major national tattoo competition. Four months later, he was invited to judge the work of other tattoo artists at the premiere tattoo convention in his home country, and when we included proof of that and added it to the rest of his documents, he was able to get the O-1. Now we are going to apply for his green card.
Contact us to begin the process!
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