Aliens of Extraordinary Ability in the Arts (O-1) Visas

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The O-1 category requires that extraordinary ability be demonstrated by sustained national or international acclaim. Case law has clearly announced that this category is open to business persons and “non professional” workers, including performers and artists, who can demonstrate that they have reached the top of their field.

Under the US Citizenship & Immigration Service regulations, persons coming to the US to work in the arts must demonstrate “extraordinary ability.” This means “distinction or “ a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered…” Although the regulations sound somewhat exclusive, in practice, they are broader. The key is defining the “field of endeavor” (e.g.: financial analyst specializing in corporate mergers vs. banker or businessman).

Foreigners in motion picture or TV production must demonstrate a record of “extraordinary achievement”. This means a “very high level of accomplishment in the motion picture or TV industry evidenced by a degree as Gail and recognition significantly up of that ordinarily encountered”. The applicant must be “outstanding or notable”.

The regulations require that the applicant proof that he or she is prominent in his or her field by documenting that they have been the reset can’t of a significant international or national award or prize, or by documenting at least three of the following criteria:

1. Lead in production having a distinguished reputation
2. Critical reviews in major newspapers or trade journals
3. Lead for organization that has a distinguished reputation
4. Record of major commercial or critically acclaimed successes
5. Significant recognition from organization’s, critics, government agencies or other recognized experts in the field
6. Past or proffered high salary or other remuneration for services, evidenced by contracts or other reliable evidence.

A person in the motion picture and TV production must meet a higher standard than those applicants in the arts.

Aside from meeting the evidence tests described above, a key requirement for O-1 applicants is consulting with an appropriate peer group, labor and/or management organization regarding the type of work to be performed and the qualifications of the proposed beneficiary. The peer group, normally a union or Guild, must provide a written opinion to the CIS, but the opinion is not binding. The CIS Operating Instructions provides a list of acceptable peer group organizations, but this list is not exclusive. There are circumstances where there are no appropriate peer groups in a given field. In those cases, the CIS will normally make a decision without a peer group consultation. Also, the CIS will not require a new consultation if the beneficiary is reentering the US in the O-1 category within two years of a previous peer group consultation.

The admission of an O nonimmigrant is limited to the period of time necessary to complete the event for which the person is admitted but for positions of a more permanent nature the status can be granted for a period of up to three years and extended thereafter in one-year increments to a maximum of six years. Spouses and children of O-1 and O-2 aliens may enter the U.S. in O- 3 status for a concurrent period as that granted to the principal applicant.

Finally, it is important to note that the requirements for the O-1 non-immigrant visa are very similar to the rules for the EB-1 “priority worker” permanent residency category for extraordinary ability aliens (see below). The two major differences are that a peer group consultation is not required in the permanent category and that in the permanent category the alien can self-petition. The main reason we recommend using the O-1 category instead of the permanent residency category is because the O-1 visa can be obtained more expeditiously than permanent residency based on priority worker eligibility.