Mayank Mohan, Esq. is a practicing attorney at Law Offices of Mayank Mohan in Santa Monica, California (www.ilomm.com). The views expressed are his own.
The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.
The O nonimmigrant classification are commonly referred to as:
- O-1A: Individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry);
- O-1B: Individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry;
- O-2: Individuals who will accompany an O-1 artist or athlete to assist in a specific event or performance; and
- O-3: Individuals who are the spouse or children of O-1 and O-2 visa holders.
O visa Eligibility:
- Demonstrated extraordinary ability by sustained national or international acclaim
- Coming temporarily to the United States to perform services in the area of extraordinary ability
- Extraordinary ability generally implies small percentage who have risen to the very top of the field of endeavor
One of the recent immigration success stories at our law firm demonstrates the promise of the O visa as a better alternative to the traditional and the better-known H1B visa. My client was an established entrepreneur who had successfully founded and exited a string of technology companies in India. He now needed to move to the US and develop his latest venture here. The client’s default position was to explore the H1B visa option. When I reviewed the credentials and what he had achieved, it was clear that the O1 could be an easier and faster alternative for his US immigration goals. He was naturally curious and wanted to understand more – why the O1, eligibility, chances of success and others.
I explained that while the qualifying criteria for O1 seems daunting, it is possible to obtain an O1 visa as an alternative to the most sought work visas such as the H1B/L1A/L1B since these visas also require advancement in the field of endeavor. Further, the O1 visa is free from several strict regulations that make obtaining the other work visas harder, for example – annual cap on number of visas, lottery selections, regulated wage rates and higher filing fees. Finally, coming to the US in O1 status could also open the door for the EB1A/B green cards (i.e., Green card for Alien of Extraordinary Ability – no labor certification is required, self-petition for this green card is allowed).
The subjective eligibility language for O1 visa i.e., “demonstrated extraordinary ability by sustained national or international acclaim” appears to establish a rather high bar for qualifying for the O visa. However, the law provides a large set of objective criteria for determining eligibility for O1 visa and the candidate is required to meet only a subset of this criteria to qualify. Very often candidates with reasonable accomplishments can easily meet the required criteria but are unaware of this potential opportunity. Generally speaking, a person who is advanced in career – leading a renowned organization, have delivered documented success in their role, have been recognized for their work through awards and media coverage, have been invited by professional forums to act as judge of the work of others and have been earning strong compensation for their work are able to qualify for the O visa.
After some convincing, my client agreed to the advice and pursued the O1 visa for the entrepreneur, which was granted swiftly by USCIS. Upon his arrival in the US, we continued to work together to develop the EB1A green card petition for him and our law office was successful in obtaining permanent residency for the client and his family in about 10 months from the date of petition submission. As mentioned before EB1 category green card does not require labor certification and one can self-petition for this green card.
In summary, when considering non-immigrant work visas options (H1B/L1A/L1B) it is always advisable to also explore the option of O visa. While the eligibility language for O1 visa may appear impenetrable and highly discretionary, the objective criterion set forth by the regulations make the evaluation and development of a potential O visa petition much more straightforward and opens the door for a green card in EB1A/B category.
For an initial self-evaluation of a candidate’s potential for an O visa see https://www.ilomm.com/single-post/2018/08/12/evaluating-an-eb-1a-ina-c2-a7-203b1a. Although the article is written for evaluating an EB1A potential, the eligibility for the O visa is exactly similar.
