- An I-129 with supplement O must be filed with the Vermont Service Center
- Unlike the H-1B category, the Department of Labor is not involved in the O-1 process
- The I-129 can be filed up to 1 year before employment begins
- The employer must petition for alien on Form I-129 with supplement O
- The employer is responsible for return cost of transportation abroad if alien is dismissed before petition period expires
- An offer of employment is required; the alien may not self-petition
- The regulations permit multiple concurrent O-1 employers, as long as each has an O-1 petition approved by USCIS
- There is no statutory limit on the period of time an individual may remain in the U.S. in O-1 visa status. However, the initial authorized period of stay will not be approved for more than three years. Extensions of stay, in one year increments, can be granted as long as the individual is continuing in the same position or activity for which they were originally granted O-1 status.
- The Department of Labor is not involved in the O-1 process (unlike the H-1B process).
- The initial period of stay is limited to a maximum of three years, there is no limit on the number of one-year extensions available thereafter.
- The O-1 is an immigration option even if the alien is subject to the 212(e) two-year residence requirement from a prior stay in J status.
- There is no annual cap on the number of O petitions USCIS can approve each year.
- The burden of proof to establish extraordinary ability will probably exclude new graduates and those with few professional publications.
- Heavy documentation burden; must obtain an advisory opinion and numerous letters from peers in the field describing the alien's outstanding ability and to obtain an advisory opinion.
- Sometimes it is difficult to identify a "peer group" that can provide the required advisory opinion.
Although the doctrine of dual intent is recognized for both O-1 and H-1B nonimmigrants on the question or labor certifications or immigration petitions, O-1 nonimmigrants do not enjoy the same treatment after an application for adjustment to status (Form I-485) is filed:
An H-1B applicant for adjustment of status who wishes to travel outside the United States and reenter while the I-485 is pending can elect to travel either as an H-1B, or on the basis of advance parole (if reentering the United States on advance parole, the alien would also have to have an EAD card in order to continue working for the employer). Although an O-1 applicant for adjustment of status can continue in O-1 status while an application for adjustment of status is pending (including filing for extension of O-1 stay when necessary), an O-1 adjustment applicant who wishes to travel outside the United States and reenter while the I-485 is pending must, like all adjustment applicants except H-1B and L, obtain advance parole before departing, or else the adjustment application will be considered abandoned. Reentering on advance parole (i.e. as an advance parolee) would also require the alien to have an EAD card in order to continue working for the employer while the adjustment application is pending. The reason for this is that the travel and reentry benefit for H-1Bs is based on a very specific regulation that is limited to H-1Bs and L-1s (and their dependents) and does not include O-1s. [8 C.F.R. § 245.2(a)(4)(ii)(C)]