By Dorothea Lockhart*

This is the first of a series of articles that we are offering to our readers on the subject of immigration options that may be available to highly accomplished business professionals and entrepreneurs who wish to live and work in the United States on a temporary or permanent basis. 

In this article we will be discussing the O-1 visa, also popularly known as the “genius visa” or the “Einstein visa.”  The O-1 visa is for persons of extraordinary ability in the sciences, arts, education, business, or athletics.  It is a visa category that is specifically designated for individuals who can prove that they have risen to the top of their field and received sustained national or international acclaim for their achievements.[1]   Additionally, these persons must be coming to the United States temporarily to continue work in their area of extraordinary ability.

Does One Really Need to Be a Genius to Qualify for the O-1 Visa?

The first question you may ask is “do I need to be a genius to receive an O-1 visa? The simple answer is “no.” There is nothing in the immigration regulations that requires that the applicant be a genius.  The O-1 visa regulations do require that the applicant demonstrate “extraordinary ability in their field.”  This is indeed a high standard; however, if you are a person of great achievement and ability in the world of business, you are probably already accustomed to proving yourself.  Let’s review the requirements more closely.

What is Extraordinary Ability?

To establish extraordinary ability for O-1 visa purposes the individual must either demonstrate receipt of a major, internationally recognized award (for example, a Nobel Prize or an Olympic medal), or, in the absence of an award of this caliber, satisfy at least three of the following eight criteria:

• Receipt of lesser internationally or nationally known prizes or awards
• Published materials about you and your work
• Membership in an association(s) that require high achievement for admission
• Original, significant contributions in your field
• Authorship of scholarly articles in professional journals or other major media
• High salary or compensation
• Participation as a judge or panel member for colleagues’ work
• Employment in a critical or essential capacity with highly reputable institutions or organizations

If these criteria do not seem to directly apply to your particular field, it is important to note that USCIS, which is the U.S. government agency that adjudicates O-1 visa petitions, interprets the regulations very broadly to encompass most fields of endeavor.  The regulations also permit the submission of “comparable evidence” in cases where the listed criteria are not applicable to a particular field. Thus, with zealous advocacy, it is usually possible to tailor the requirements to your specific field of endeavor. 

Some of the Many Benefits of the O-1 Visa

The O-1 visa category is a prestigious visa category that offers several advantages over other types of temporary work visas, including:

• No annual limit on the number of visas that may be issued;
• The processing time for O visa petitions is usually relatively short, as compared to other visa categories;
• O visas are granted for the length of time desired by the employer or the time necessary for a particular event, up to a maximum of three years, with unlimited extensions in one-year increments thereafter;
• The O visa holder and family may travel in and out of the U.S. or stay continuously for as long as the visa stamp and status are valid;
• A spouse and unmarried children under age 21 may obtain an O-3 visa and accompany the O visa holder (but they may not accept employment in the United States);
• The O-1 visa does not have a maximum limit to the stay in the U.S. This makes it a good option for H-1B and L-1 visa holders who are close to reaching their statutory maximum period of stay;
• The O-1 visa is not subject to the requirements of the Labor Condition Application unlike the H-1B visa.  Accordingly, O-1 visa application is free from various restrictions such as wage, location of work, etc. normally imposed by the U.S. Department of Labor;
• Individuals in J-1 status who are subject to the two-year home residency requirement are eligible for O-1 Status without having to return home or obtaining a waiver, as is required to obtain an H-1B or L-1 visa.   In such cases, however, the alien may not change status to O-1 in the United States, but must obtain an O-1 visa either in the home country or a third county;
• The concept of “dual intent” appears to be recognized by USCIS for O-1 visa holders (but not for their O-3visa dependents). While not statutorily recognized as “dual intent” visa like the H-1B visa and L1 visa, in practice O-1 visa holders have been allowed to come to U.S. in O-1 visa status, and depart U.S. at the end of the authorized stay, and at the same time, apply to become a permanent resident of the United States; and
• O-1 visa holders often qualify for permanent residency under the EB-1A first preference category

How do I apply for an O visa?

A foreign national cannot apply for an O visa in his or her own name. They can, however, file through a U.S. employer, agent, manager, venue, etc.  If an entrepreneur has started a company, then that company may act as his/her petitioning employer. A co-founder or member of the Board of Directors will need to be the signatory on behalf of the petitioning employer for all of the immigration forms and the petition letter.

The form for petitioning for an O visa is the I-129, along with the I-129 O/P Supplement. This must be submitted with a petition letter arguing for the alien’s extraordinary ability, supporting evidence documenting the alien’s extraordinary ability, an advisory opinion, if applicable, details of the proposed work in the US, and identification documents.

How our O-1 Visa Lawyers can help

During a consultation with one of our O-1 visa lawyers, your résumé or curriculum vitae will be carefully reviewed and evaluated to determine if you may be eligible to apply for an O-1 visa, or other visa options.  In cases where we find that an individual is not currently eligible for the O-1 visa, but has the potential to qualify, we provide strategic counsel on how their profile may be enhanced to increase their chances of success with an O-1 visa petition in the future. 

Our O-1 visa lawyers have extensive experience in building the strongest possible O-1 visa petition case for accomplished business professionals and entrepreneurs.  We take great pride in assisting the “best and the brightest” find opportunity in the United States.  We provide skillful representation during all phases of the O-1 visa application process, from evidence and documentary requirements, to preparation and official filing of a substantial O-1 visa petition package with USCIS.  Our representation includes an extensive “supporting statement” that provides USCIS with a full analysis of the significance of your professional or entrepreneurial accomplishments.

The O-1 visa provides a way for accomplished foreign nationals of extraordinary ability in the field of business to bring their talents and abilities to markets in the United States. It is a useful option to gain temporary admission to the United States to perform services, expand the market base for a product or invention, or participate in events.  Additionally, the O-1 Visa is an excellent option for accomplished entrepreneurs and/or business professionals who face difficulties getting an H-1B or other nonimmigrant visas.  Applicants who have extraordinary abilities in business and can demonstrate a record of achievement may wish to consider the O-1 visa.

*Dorothea Lockhart is a partner at DGW Kramer LLP.  She takes great pride in assisting the world’s best and brightest achieve their U.S. immigration goals.  She has extensive experience handling business and employment-based immigration matters, including the illustrious O-1 visa category.

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[1]  There is also a provision for foreign nationals who have extraordinary achievement in motion picture and/or television productions which is beyond the scope of this article.