The O-1 may be an option for those who did not get an H-1B visa number. Unlike H-1Bs, which have a shortage of visa numbers, there is no limit to the visa numbers for the O-1 category. Because it is for those with “extraordinary ability”, it generally is not suitable for those who have just graduated from university, or young people just starting out in their career. The O-1 allows those who have shown extraordinary ability in the sciences, education, business, athletics, the arts, or in the motion picture and TV industries to come to the U.S. temporarily for up to three years initially, and then may be extended.
Thus, suppose you are a fashion designer with national or international renown who did not get an H-1B visa number in the visa lottery this year, you may still apply for an O-1. Additionally, there is no requirement for the O-1 to prove that the beneficiary is a “professional”, thus there is no requirement that the O-1 applicant have a four-year bachelor’s degree that is closely related to his or her field.
For example, musicians who lack a bachelor of music or others who cannot show both that the position is a professional position and that they have the requisite degree and so are not eligible for an H-1B, may be eligible for an O-1 because as long as you can show the requisite degree of success in your field, you may obtain an O-1 even if you have no formal degree, or the job itself is not professional.
This article will focus on O-1s in the arts, which have an easier legal standard to satisfy than O-1s in the sciences, business and education. Federal regulations define “arts” very broadly to include the following:
1) fine arts, i.e., painting, drawing, etc;
2) visual arts, i.e., industrial design, graphic design, fashion design, fashion modeling, interior design, photography, are just some examples;
3) culinary arts, i.e., top French chefs; top pastry chefs, etc., and
4) performing arts, i.e., singers, composers, musicians, actors, dancers, directors, choreographers, etc.
You may be eligible for an O-1 even if you are not the principal creator and performer, but essential to the production, including directors, set designers, lighting designers, sound designers, choreographers, conductors, orchestrators, coaches, arrangers, musical supervisors, costume designers, makeup artists, flight masters, stage technicians, and animal trainers.
The legal standard for an O-1 in the arts is somewhat lower than the exceptionally high standard in the fields of business, sciences and education. While in the areas of business and science, you have to prove that you are one of the few at the very top of your field, in the area of arts, you instead must prove “distinction”, meaning “renowned, leading, or well-known in the field of arts”.
One advantage of the O-1 over the H-1B, is that you do not need a single employer to be the petitioner. The O-1 allows you to use a US agent as the petitioner. The U.S. agent may be: the actual employer of the beneficiary; the representative of both the beneficiary and the employer; or a person or entity authorized by the employer to act in its place. The agent and beneficiary must have a written contract, and if there are a series of events or performances in various locations or with various employers, a detailed itinerary with dates, locations, etc.
O-1s also generally require a written advisory opinion from a peer group, union, labor and or management organization. To give you an idea of the various organizations suitable for an O-1B advisory opinion, USCIS has a non-exhaustive list, at https://www.uscis.gov/working-united-states/address-index-i-129-o-and-p-consultation-letters.
If one has not been nominated for, or received, significant national or international prizes, such as an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award, the beneficiary must show at least three of the following:
1) they have performed a lead or starring role in productions with a distinguished reputation;
2) leading or critical role for organizations or establishments with a distinguished reputation;
3) they have national or international acclaim as shown by critical reviews or articles in major newspapers, trade journals, etc;
4) major commercial or critically acclaimed success;
5) significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field;
6) high salary or substantial remuneration.
7) A catch-all category, so the beneficiary can submit “comparable evidence” if the list above is not directly applicable to their field.
Copyright 2019 © Heidi J Meyers, all rights reserved.