Extraordinary Ability in the Arts, Science, Education, Business or Athletics or Extraordinary Achievement in the Motion Picture or TV Industries

Definitions

Extraordinary ability in the field of science, education, business or athletics requires "a level of expertise indicating that the person is one of the small percentage who have risen to the very top of the field of endeavor."

Extraordinary ability in the arts requires "distinction." Distinction means a high level of achievement as evidenced by a degree of skill and recognition substantially above the ordinary so that the person may be described as "prominent" which is "renowned, leading or well-known" in the field.

Extraordinary achievement in the motion picture or TV industries: Must have a high level of achievement as evidenced by a degree of skill and recognition substantially above the ordinary so that the person may be described as "outstanding, notable, or leading."

Documentation Required

For Persons of Extraordinary Ability in the Arts, Science, Business , Athletics or Education or Extraordinary Achievement in the Motion Picture or TV Industries, the following documentation is required:

Evidence of at least three of the following:

1. The applicant has performed a lead or starring role in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications contracts or endorsements;
    
   
2. The applicant has achieved national or international recognition for achievements (evidenced by critical reviews or other published material by or about the individual in newspapers, trade journals, magazines or other publications);
    
   
3. The applicant has performed a lead, starring or critical role for organizations or establishments that have a distinguished reputation (evidenced by newspaper articles, trade journals, publications or testimonials);
    
   
4. The applicant has a record of major commercial or critically acclaimed successes (evidenced by ratings, title, standing in the field, box office receipts, motion picture or television ratings, and other occupational achievements reported in trade journals, newspapers or other publications);
    
   
5. The applicant has received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field (testimonials from such applicants must indicate the author's authority, expertise and knowledge of the applicant's achievement);
    
   
6. The applicant has commanded or now commands a high salary or other substantial remuneration as evidenced by contracts or other reliable evidence;
    
   
7. The applicant has received nationally or internationally recognized prizes or awards;
    
   
8. The applicant is a member in an association which requires outstanding achievements as judged by experts in the field;
    
   
9. The applicant has served on a panel or individually to judge the work of others in same or related field;
    
   
10. Other comparable evidence.
    

Procedures

The applicant must be sponsored by an employer or agent who files the petition. The petition is accompanied by a letter from the petitioner describing what work the person will be doing in the United States. The applicant must be coming to continue to work in his or her area of extraordinary ability or achievement.

The petitioner must submit a consultation (a written advisory opinion) from a peer group, labor organization or management organization relating to the nature of the work and the applicant's qualifications. This consultation may be from an expert in the field if the applicant possesses extraordinary ability in the Sciences, Arts or Business. The petition is submitted to the INS regional office with jurisdiction designated by the place of employment. When approved, the petition is forwarded to a U.S. consulate abroad where the applicant makes his or her application for the O-1 visa.

The petition may be approved for an initial period of 3 years and may be extended one year at a time.

Spouses and children (under twenty-one) may accompany the O-1 visa holder to the U.S. but they may not engage in employment. O-1 dependent children may attend school.

Advantages of the O-1: The main advantages to the O-1 are: 1) for persons who could otherwise qualify in the H-1B classification, there is no LCA requirement and therefore no requirement that the salary be posted; and 2) for persons who are executives and managers, they can qualify without meeting the L requirement of having worked for the employer previously (and therefore are ineligible for L-1 status); and 3) the same documentation may later be used to establish extraordinary ability or exceptional ability or outstanding researcher eligibility for permanent residency.

Disadvantages of the O-1: 1) a petition is required so there is no advantage over the Blanket L-1 in terms of time; 2) it usually takes a considerable period of time to collect the necessary documentation, so in practice it may take significantly longer to process an O-1 petition than an H-1B; 3) the outcome is more certain in L-1s and H-1Bs in that both categories generally have clearer and simpler criteria; 4) the O-1 is defined as being for an "event or event" so it is most appropriate for a project of limited duration, not an ongoing position; 5) extensions are granted only for one year, not for three years (as with H-1Bs) for two years (as with L-1s).