1

Understanding the O-1 Visa

To understand the O-1 Visa, it is important to realize that it is considered a non-immigrant visa. This means that it is not designed to directly provide the person holding the O-1 with permanent residency in the United States. However, many persons who may not yet have reached the level of acclaim necessary to obtain a Green Card immediately use the O-1 Visa to be able to engage in work in the U.S., gain additional experience, and then later apply for a Green Card. Of course this visa may be and is also often used by persons who have no intention of later applying for a Green Card but who merely need a valid working visa to be able to enter the U.S. and partake in productions, events, employment, or other itineraries.

2

Are There Different Types of O-1 Visas?

Yes. The O-1 Visa come in two designations, the first type, the O-1A visa, is applicable to those persons who have "extraordinary ability" in the fields of science, art, education, business, or athletics. The second designation is the O-1B visa, which specifically applies to those persons who have a record of extraordinary achievement in the motion picture or television industry. Note for the O-1B that persons in any way related to film or T.V., for example Sound Editors, qualify under the O-1B classification.

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O-1 Visa Standards: Overview

The O visa requirements themselves focus in large part on evidencing an applicant's standing in his or her field. Such standing can be evidenced in several ways depending on each person's unique circumstances. Again using our example of a Sound Editor, showing that a Sound Editor has worked on films that have themselves been well received at film festivals or showing that a Sound Editor has worked with well established production companies, can all be used towards qualifying such a professional for an O-1 Visa. As each profession and industry varies there are certain manners in which to bolster and bring to light each persons "Extraordinary Ability" in their field. Often the O-1 Visa requirement that an applicant show his or her "extraordinary ability" can feel daunting to those considering the visa. It is important however to realize that the O-1 visa requirements do specifically provide a path for applicants who have not won or received any major awards.

4

What Work Can I Participate on While on the O-1 Visa?

An O-1 Visa Beneficiary may either work as a part-time or full-time employee of a company, or alternatively an itinerary of individual events may be used as well. As many professionals in the fields or film, television, arts, and athletics do not work part-time or full-time for one specific employer, the O-1 Visa allows an applicant to enter with an itinerary of upcoming projects and events. This is a very important consideration in the O-1 Visa process as the immigration regulations are laid out in a manner which make it clear that the intention of the O-1 Visa is not to allow a person to enter the U.S. to look for work. Instead, the O-1 Visa Beneficiary must evidence that they already have work lined up in the U.S. and therefore the Beneficiary is requesting the visa.

5

How Long is an O-1 Visa Valid?

The general rule is that the O-1 Visa may be approved for a maximum of three years at a time. There are unlimited extensions however as long as an applicant can evidence additional upcoming events or employment at the time of filing such an extension. Note however that an O-1 Visa is not always approved for three years at a time. Often, if an applicant only evidences that they have one very short upcoming event that they wish to participate in then the immigration service will only approve the O-1 Visa to cover this time period.

6

Who is the Petitioner and Who is the Beneficiary?

The Beneficiary of an O-1 Visa is the person who will be entering the U.S. and benefiting from the O-1 Visa status by being able to work whether as an employee or independent contractor completing their itinerary of events. The Petitioner is the company or person who actually files the petition on the Beneficiary's behalf. The Beneficiary and the Petitioner are NOT allowed to be the same person. The Petitioner on an O-1 Visa application can either be a company or an individual U.S. Citizen or Legal Permanent Resident. There are various issues to be detailed and discussed regarding this requirement with each individual person as circumstances may dictate the best strategic option to pursue. The Petitioner however does not have to be a company who is offering work to the Beneficiary if the Beneficiary is entering the U.S. to participate on an upcoming itinerary of events.

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What Evidence is Needed to Prove my Ability?

Depending on the profession there are slight variations in the rdquirements however they are similar enough to provide this overview. Evidence must be presented sufficient to satisfy at least three of the following elements, establish that the alien: (1) has or will perform a lead or starring role in productions or events that have a distinguished reputation; (2) has achieved national or international recognition for achievements; (3) has performed a lead, starring, or critical role for organizations and establishments that have a distinguished reputation; (4) has a record of major commercial or critically acclaimed successes; (5) has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged; (6) has commanded or now commands a high salary or other substantial remuneration for services in relation to others in the field; or (7) other comparable evidence.

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How Long Does the O-1 Visa Process Take?

It depends. There are two different processing options that are provided by the immigration service, Regular Processing and Premium Processing. If an applicant uses the Regular Processing route then current processing times are around 2 months although this varies between service centers and over time. What is guaranteed however is that if Premium Processing is used, which requires an additional $1,225 filing fee paid to the immigration service, an application will be processed within 15 days. Note however that the immigration service does sometimes come back within the 15 day period and request additional evidence. If this happens then upon submission back to the immigration service they again only have 15 within which to make a decision. Accordingly, Premium Processing can take on average between 15-40 days. Overall processing time for an O-1 Visa obviously varies from case to case depending on how quickly an applicant is able to gather documentation and so forth.

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Importance of an Immigration Attorney

It is worth stating herein that the O visa process is complex and that the services of an experienced O-1 visa attorney can often be the difference between an approval and denial of your case. Of course cases vary greatly and are more complicated than others, however discussing your case with an immigration attorney is highly recommended in all situations. For more information on the O visa please feel free to contact me directly at hp@dekirby.net or 415-221-3500 Ext.18.