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Departments willing to sponsor an employee for O-1 status should consult with a qualified immigration attorney who will need to work with ISSS for Forms I-129 and G-28 signatures.
The O-1 visa is a non-immigrant employment-based visa classification for foreign nationals who can demonstrate the sustained national or international acclaim and recognition for achievements in the science, education, business, or athletics. It requires the employer file a Petition for a Nonimmigrant Worker (Form I-129), along with evidence of the individual's extraordinary ability. The "extraordinary ability in the field of science, education, business, or athletics means 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."
Under federal law there are three different standards for the O-1 category:
The O-1 visa category is reserved for those individuals who have risen to the very top of their fields of endeavor and can provide documentary evidence to substantiate this claim. To qualify for O-1 visa status, an individual in the sciences, education, business or athletics must demonstrate national or international acclaim and recognition for achievements in the field of expertise by providing evidence of:
In addition to meeting the criteria outlined above, the individual must be coming to the United States to work in his or her area of extraordinary ability or achievement. However, the position, event, or performance need not require the services of a person of extraordinary ability.
O-1 visa classification is granted by the USCIS. The employer must submit a petition that is employer and position specific to USCIS on behalf of the employee. The foreign national granted O-1 visa classification will be authorized by USCIS to be employed only by the employer that submitted the O-1 application and only for the time period and the position, event or activity for which the USCIS granted approval. The employee may not commence employment prior to the date authorized by USCIS and must terminate employment no later than the date authorized.
If the O-1 foreign worker terminates employment with the petitioning employer, s/he will immediately lose O-1 status and is required to depart the U.S. immediately or risk action by the USCIS for violation of immigration regulations. If the employer dismisses the foreign worker prior to the date authorized by USCIS the employer is responsible for return transportation of the foreign worker to his/her last place of residence outside the U.S.
If the O-1 foreign worker wishes to change her/his employer, the new employer must file another O-1 petition and is not permitted to employ the foreign worker until it has received approval from USCIS for its O-1 application.
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.
Prior to filing the O-1 visa petition with the USCIS, the employer must obtain an advisory opinion from an appropriate consulting entity or a labor organization, or show that an appropriate peer group, labor organization or management organization does not exist.
Under current federal regulations, if the position is covered under a union contract, the employer may obtain a letter of no objection signed by an official union representative of the local chapter. The letter must state the name of the employer and the name of the foreign worker, along with the name of the labor organization and the name and address of the local chapter. The letter must state that the labor organization has reviewed pertinent information about the position and the foreign worker's credentials and that the hiring of the foreign worker will not "adversely affect the wages or working conditions of U.S. workers and that, therefore, it has no objection to the hiring of the foreign worker".
Once the employer has obtained the approval notice from the USCIS, the foreign worker may apply for an O-1 visa at a U.S. Embassy or Consulate in his/her country of residence. The foreign worker presents the O-1 visa at the U.S. port of entry, and is admitted in O-1 visa status to assume legal employment.
In some instances, the foreign national may already be present in the U.S. in a non-immigrant visa category other than O-1. In these situations, it may be possible to request a change of status to O-1 on behalf of the foreign worker. If granted, the Notice of Approval will reflect the change to O-1 status and the foreign worker may begin employment as of the date indicated on the approval notice. In these instances, it is not necessary for the foreign worker to obtain an actual O-1 visa stamp to begin employment. However, if the O-1 foreign worker travels outside the borders of the U.S. s/he must obtain an O-1 visa from a U.S. Embassy or Consulate in order to re-enter the U.S. to continue legal employment.
If the individual works for more than one employer at the same time, each employer must file a separate petition with the USCIS.
The J-1 may be subject to the requirement and still apply for the O-1 visa outside the US. According to USCIS correspondence, a J-1 nonimmigrant in valid status who qualifies as an individual of extraordinary ability "may (1) have an O-1 nonimmigrant visa petition approved on his or her behalf and (2) proceed abroad and apply for and receive from the State Department an O-1 visa, without first having to fulfill the two-year foreign residence requirement or obtain a waiver thereof." Interpreter Releases, Vol. 71, No. 39, Oct.7, 1994 8. INS Discusses 212(e) Bar for J Aliens Who Qualify as O-1s [71 IR 1360]
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)]
The spouse and unmarried children under the age of twenty-one may apply for O-3 visa status in order to accompany the O-1 visa holder to the US. O-3 visa status does not confer authorization for employment in the US.
If the employment is terminated for reasons other than voluntary resignation, the employer is liable for the reasonable cost of return transportation of the individual to his/her last place of residence prior to entry into the US.