Extraordinary Ability Individuals (O)

The purpose of the O category is to permit the temporary admission and employment of individuals with extraordinary ability in the sciences, arts, education, business, or athletics for the purpose of continuing work in the area of their abilities on behalf of a petitioning employer. There is no cap on the annual number of O admissions.

Who May Petition

Individuals cannot self-petition for O-1 status. An employer or agent must file a petition on the individual’s behalf. Where there will be multiple simultaneous employers, each employer must file a separate petition. However, for individuals who are traditionally self-employed or use agents to arrange short-term employment with numerous employers, an agent can be the petitioner.

Demonstrating Extraordinary Ability

USCIS rules establish somewhat different evidentiary proofs of "extraordinariness" for science, education, business, and athletics as compared with the arts. In all cases, however, petitioning employer must demonstrate that the individual has achieved a record of performance, achievement, and recognition in the highest tiers of their fields, and that there is a substantial body of material that demonstrates agreement by their peers as to their achievements and capabilities. The specific types of evidence vary depending on the nature of the individual’s field.

Extraordinary Ability in the Fields of Science, Education, Business, or Athletics

With respect to individuals in scientific, education, business, or athletics, petitioners must demonstrate the beneficiary has a level of expertise indicating that person is one of a small percentage or persons who have risen to the very top of their field of endeavor.

If the individual has received one of the world's preeminent international prizes, the law will, in effect, deem the selection committee's work in awarding the prize to have satisfied any screening requirement that the USCIS would have conducted. The international award bar is a high one, though, with the Nobel as a benchmark. Other awards granted by highly respected foundations which couple high levels of scrutiny of a body of work with a substantial economic or intangible award would pass muster as well, such as a Pulitzer Prize in journalism, or the international equivalent of a MacArthur Foundation grant.

In most cases, O-1 eligibility is established by demonstrating a threshold evidentiary proof followed by demonstrating extraordinary ability “in the totality.” The first step is to document three or more of the following proofs of achievement under the regulations, including:

• Receipt of major prizes or awards;
• Membership in associations which require outstanding achievement of their members;
• Published material, in print or online, written or video/audio, relating to the individual's work;
• Evidence the individual has judged of the work of others in their field;
• Evidence of the individual’s original scientific, scholarly, or business contributions "of major significance in the field";
• Scholarly articles by the individual published in professional journals or other major media;
• Past employment in a critical or essential capacity for organizations and establishments with distinguished reputations, along with evidence supporting the establishments’ reputations; or
• Tax returns, W-2, or other remuneration related evidence showing the individual’s income from their work in their field is high relative to others in the field.

If these criteria do not apply to the individual’s field, there is a third option for proof. The petitioner can provide other evidence that similarly shows extraordinary ability. This “catch-all” option is often combined with at least some evidence from the enumerated categories.

Extraordinary Ability in the Arts

A petitioner seeking to establish an individual’s extraordinary ability in the arts must demonstrate the individual has a high degree of skill and recognition substantially above that ordinarily encountered and that the person is renowned, leading, or well known in that artistic field. The definition of “arts” is broad in this instance, including fine arts, visual arts, culinary arts, performing arts, and other “creative” endeavors. In practice, this is a less stringent standard than applicable to fields of expertise involving Science, Education, Business, or Athletics.

As with the prior category, this is also multiple ways a petitioner can show an individual’s “extraordinary ability”. Petitioners can establish an individual’s extraordinary ability through their nominated for or receipt of a major international award (e.g., Oscar, Emmy, Grammy, MacArthur Fellowship, etc.). Alternatively, they can use alternative evidence which falls into at least three of the following categories:

• Evidence that the individual has or will perform in leading productions or events with a distinguished reputation as evidenced by critical reviews, ads, endorsements, etc.;
• Evidence that the individual has achieved national or international recognition for achievements evidenced by reviews, articles, etc.;
• Evidence that the individual will perform a leading, starring, or critical role for organizations and establishments with distinguished reputations;
• Evidence that the alien has established a record of major commercial or critical acclaim based on titles released, box office receipts, critical reviews, etc.;
• Evidence that the individual has received significant recognition from organizations, critics, government entities, or other experts; or
• Evidence that the individual has or will command a high salary or other compensation.

If these criteria do not apply to the individual’s artistic field, the petitioner can provide other evidence that similarly shows extraordinary ability. This “catch-all” option is often combined with at least some evidence from the enumerated categories.

Extraordinary Achievement in the Motion Picture or Television Industry

A petitioner seeking O-1 status for an individual in the motion picture or television industry must demonstrate the individual’s extraordinary achievement (not ability) in the industry and must establish the individual has “a very high level of accomplishment” as show by “a degree of skill and recognition significantly above that ordinarily encountered.” In other words, the petitioner must show the individual is “recognized as outstanding, notable, or leading in the motion picture or television field.”

For this category, there are only two options, preeminent award, or evidence that falls into at least three enumerated categories. There is no “catch-all” for movies and television. If the individual has been nominated for or received a major international award (e.g., Oscar, Emmy, or Director’s Guild Award) no other evidence is needed. For all other cases, petitioner must provide three or more of the following types of evidence:

• Evidence that the individual has or will perform in leading productions or events with a distinguished reputation as evidenced by critical reviews, ads, endorsements, etc.;
• Evidence that the individual has achieved national or international recognition for achievements evidenced by reviews, articles, etc.;
• Evidence that the individual will perform a leading, starring, or critical role for organizations and establishments with distinguished reputations;
• Evidence that the alien has established a record of major commercial or critical acclaim based on titles released, box office receipts, critical reviews, etc.;
• Evidence that the individual has received significant recognition from organizations, critics, government entities, or other experts; or
• Evidence that the individual has or will command a high salary or other compensation.

Petitioners are limited to the six enumerated options for proof. If these six do not apply to the individual, there is no provision for providing alternative forms of proof.

Consultation

In addition to the submission of proofs, petitioners must submit a consultation, usually in the form of a written advisory opinion, from a U.S. peer group, labor, or management organization regarding the nature of the work to be done and the individual's qualifications to perform them.

Change of Employers/Termination

If the extraordinary ability individual changes employers while in the U.S., the new employer must file a new petition describing the new activities in which the individual will be engaged. If the U.S. employer terminates the individual’s employment prematurely, the employer is obligated to provide return transportation abroad to the individual’s most recent place of residence.

Supporting Employees (O-2)

A principal with extraordinary ability in the arts or athletics may be accompanied by individuals who are an integral part of the actual performance of the principal in the specific performing or sports events (e.g. coaches, trainers, managers, etc.). In this function, the O-2 must have critical skills and experience specific to activities of the principal and specifically commit to retaining a primary residence outside of the United States. (This is not a requirement of the principal him or herself). Additionally, the employee must demonstrate substantial experience performing the critical skills and essential services for the principal, or, if the employee is involved in motion picture or television production, she must demonstrate her involvement in significant pre- or post-production work on the film outside of the United States, and that her work is essential to the project.

Dependents

The spouse and minor children of the principal individual and of her supporting employees may accompany or follow to join the principals. These dependents are given O-3 status and are not authorized for employment while in the U.S. in this dependent status.

Term

The principal will be granted a stay of sufficient duration to complete the event(s) for which she is coming to the U.S., up to 3 years. Employees and dependents are permitted to stay the same length of time. Extensions of stay are permitted in one year increments to complete the activity for which admission was originally granted.

Dual Intent

The O-1 category is not overtly a dual intent category, but individuals in O-1 status may be beneficiaries of labor certifications and take certain steps toward permanent residence.