O-1 Visa: Individuals with Extraordinary Ability and New Guidance with a Focus on STEM Field

 

The regulations define “extraordinary ability” as applied to the O-1 classification as follows:

• In the field of science, education, business, or athletics: a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor.

• In the field of arts: distinction, defined as a high level of achievement in the field of arts, as evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.

 

To meet the O-1 visa standards, the applicant must be able to show extraordinary ability in their field through different types of documentation depending on their specific field.

 

O-1A Beneficiaries in Sciences, Education, Business, or Athletics

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The supporting documentation for an O-1A petition must include evidence that the beneficiary has received a major internationally recognized award (such as the Nobel Prize) or at least three of the following forms of evidence:

• Documentation of the beneficiary's receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

• Documentation of the beneficiary's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

• Published material in professional or major trade publications or major media about the beneficiary, relating to the beneficiary's work in the field for which classification is sought, which must include the title, date, and author of such published material, and any necessary translation;

• Evidence of the beneficiary's participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization for which classification is sought;

• Evidence of the beneficiary's original scientific, scholarly, or business-related contributions of major significance in the field;

• Evidence of the beneficiary's authorship of scholarly articles in the field, in professional journals, or other major media;

• Evidence that the beneficiary has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation; or

• Evidence that the beneficiary has either commanded a high salary or will command a high salary or other remuneration for services, as evidenced by contracts or other reliable evidence.

 

O-1B Beneficiaries in the Arts

 

The supporting documentation for an O-1B (Arts) petition must include evidence that the beneficiary has received, or been nominated for, a significant national or international award in the particular field (such as an Academy Award, Emmy, Grammy, or Director’s Guild Award) or at least three of the following forms of evidence:

• Evidence that the beneficiary has performed, and will perform, services as a lead or starring participant in productions or events that have a distinguished reputation, as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements;

• Evidence that the beneficiary has achieved national or international recognition for achievements, as evidenced by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications;

• Evidence that the beneficiary has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation, as evidenced by articles in newspapers, trade journals, publications, or testimonials;

• Evidence that the beneficiary has a record of major commercial or critically acclaimed successes, as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications;

• Evidence that the beneficiary has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the beneficiary is engaged. Such testimonials must be in a form which clearly indicates the author's authority, expertise, and knowledge of the beneficiary's achievements; or

• Evidence that the beneficiary has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence.

 

O-1B Beneficiaries in Motion Picture or Television

 

The supporting documentation for an O-1B (MPTV) petition must include evidence that the beneficiary has received, or been nominated for, a significant national or international award in the particular field (such as an Academy Award, Emmy, Grammy, or Director’s Guild Award) or at least three of the following forms of evidence:

• Evidence that the beneficiary has performed, and will perform, services as a lead or starring participant in productions or events that have a distinguished reputation, as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements;

• Evidence that the beneficiary has achieved national or international recognition for achievements, as evidenced by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications;

• Evidence that the beneficiary has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation, as evidenced by articles in newspapers, trade journals, publications, or testimonials;

• Evidence that the beneficiary has a record of major commercial or critically acclaimed successes, as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications;

• Evidence that the beneficiary has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the beneficiary’s field. Such testimonials must be in a form that clearly indicates the author's authority, expertise, and knowledge of the beneficiary's achievements; or

• Evidence that the beneficiary has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence.

 

If you an O-1 nonimmigrant is in the United States and wants to change employers, the new employer must file the new O-1 petition with the U.S. Citizenship and Immigration Services. If there has been any material change in the terms and conditions of the employment or eligibility, the employer or agent must file an amended petition with the USCIS.

 

The U.S. Citizenship & Immigration Service (USCIS) recently amended its Policy Manual to provide expanded evidentiary guidelines for the applicants in the fields of Science, Technology, Engineering and mathematics (STEM). The guidance states that evidence establishing that a beneficiary is named on a competitive government grant or stipend for STEM research may be “a positive factor indicating the beneficiary is among the small percentage at the top of the beneficiary’s field.” The guidance also provides additional evidentiary examples for employers seeking to petition for O-1A extraordinary ability nonimmigrant employees working in STEM-related professions.

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