Navigating the O-Visa Process: Petitioning for Extraordinary Talent

Professionals in the culinary arts could be eligible for O-visas if lauded for his talent.

O-1 Visa: Petitioning for International Talent with 'Extraordinary Ability'

Professionals that have risen to the top and are considered distinguished in their particular field should qualify for the O-1A (sciences, education, business, or athletics), the O-1B (arts), or the O-1B (MPTV) visa. The visas are petitioned for by the employer or agent (petitioner) on behalf of the professional/talent (beneficiary). The burden of proof falls on the petitioner to demonstrate that the beneficiary meets the criteria required to obtain an O-visa, the primary of which is 'extraordinary ability'. Approved visas are for a period of three years with the ability for renewal in one-year increments of time so long as certain requirements are met. The type profession that qualifies for O-visas are vast; they can range from renowned chefs to athletic coaches.

Petitions for O-1 visas should be comprehensive and detailed enough demonstrate that the beneficiary is distinguished in his field.

Who is an Eligible Beneficiary?

Eligible beneficiaries can either change status to O-visa if they are already in the United States. Or, a non-citizen can enter the United States based on an O-visa.

Within the petition, the petitioner must shown that the beneficiary exhibits extraordinary ability in the sciences, arts, education, business, athletics, or achievement in the television or motion picture industry. In addition, the beneficiary must seek to enter the United States to continue work in the area of extraordinary ability. The O-2 Visa is available for essential support personnel, and the O-3 visa for certain family members of the principal O-1 visa holder.

An agent (such as a sports agent) qualifies as an eligible petitioner.

Who Qualifies as a Petitioner?

A petitioner can be either a U.S. employer or agent.

A U.S. agent may petition for workers:

• Who are typically self-employed;

• Who use agents to arrange temporary employment for them with numerous employers; and

• In situations where a foreign employer authorizes the agent to act on it's behalf.

A U.S. agent could be:

• The actual employer of the beneficiary;

• Representative of employer and beneficiary; or

• Person/entity authorized by the employer to act for, or in place of, the employer as its agent.

O-3 visas are available for the spouse and unmarried children under age 21 of the beneficiary O-1 and O-2 beneficiary.

Beneficiary's Family

An O-3 visa may be available for the spouse and unmarried children under age 21 of the principal O-1 or O-2 non-immigrant. These family members would be subject to the same conditions and time period as the principal beneficiary. The O-3 visa beneficiary is unable to accept employment under this status in the United States.

USCIS will issue an approval or denial of the O-visa petition. The petitioner will be notified in writing of the decision.

Determinations

An immigration officer will issue either an approval or denial to the O-visa petition. An approval has a maximum period of three years. However, the petitioner can request an extension in increments of up to one year to continue or complete the same event or activity under which the beneficiary was admitted.

An immigration officer will deny the petition if he determines the beneficiary does not meet the eligibility requirements. The officer must notify the petitioner of the denial in writing. The written decision must explain why the petition was denied along with information on how to appeal.

USCIS can revoke the O-visa for a variety of reasons. a 'Notice of Intent to Revoke' will be issued.

Revocation - Notice of Intent to Revoke (NOIR)

USCIS can revoke an O-Visa at any time, even after the validity period of the visa expires. The O-Visa is automatically revoked if the petitioner files a written request to with draw the petition or the petitioner ceases to exist.

USCIS May Issue a NOIR if determined that:

• the petition contained facts that were not correct or untrue;

• the beneficiary is no longer employed by the petitioner in the capacity stated in the petition;

• the petitioner violated the terms and conditions of the approved petition;

• the petitioner violated the statute or regulations; or

• the petition approval violated regulations or involved gross error.

Many people believe O-B1 visas are just for artists. However, a wide range of professionals could qualify for this category if they are distinguished in their field.

Who Typically Qualifies for O-Visas?

One misconception is that this visa is only for Olympic medalists or artists. However, individuals in almost any profession who are recognized for their achievements should qualify.

Some individuals that typically qualify for the O-1A visa are professional athletes, CEOs, marketing professionals, cyber security experts, or athletic coaches. Again, the important point to note is that any professional must be distinguished in their field in order to qualify.

On the other hand, an O-1B beneficiary could be a professional chef, fashion designer, film director, and more. The important point here is that the petitioner must prove that the beneficiary has been publicly recognized for their talent. The O-1B visa could even apply to content creators and social media influencers if they have become so recognized in this field for their talent.

Although many professionals in a variety of industries could potentially qualify for the O-visa, it is by no means easy to obtain. The 'extraordinary ability' criteria required is subjective and means that the petitioner must prove that the beneficiary's talent rises above the majority of other professionals in that particular field. USCIS reviews these petitions on a case-by case basis, judges the standards of each profession individually, and assesses each beneficiary based on their merits. A quality immigration attorney will tailor each petition based on the beneficiary's area of expertise, carefully and meticulously highlighting the professionals' achievements. The experienced attorney will also explain to the immigration officer the proper standards and qualifications that the beneficiary possesses which makes him distinguished from his peers and of 'extraordinary ability'.

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