Looking for Possibilities: Those Extraordinary O-1s and EB-1As
With numerous backlogs and limited availability impeding other traditional work visa and green card routes, the O-1 and EB-1A can be worthwhile alternatives.
Immigration enriches our world through the transmission of ideas, talent, and new opportunity. Individuals who possess nationally or internationally recognized expertise or achievements may be able to utilize additional avenues for immigration to the United States. In this post, we’ll discuss two potential U.S. immigration pathways for foreign nationals based on extraordinary ability or a record of extraordinary achievement: the O-1 work visa petition and the EB-1A I-140 immigrant petition.
O-1 Work Visas
The O-1 work visa is designed for persons of extraordinary ability in the sciences, education, business, athletics, or arts, as well as for persons with a record of extraordinary achievement in the motion picture and television industry. “Extraordinary ability” requires proof of sustained national or international acclaim in one’s field of endeavor for persons in the sciences, education, business, or athletics (O-1A), i.e., they have risen to the very top of their field. Notably, the USCIS Policy Manual has been updated to provide detailed guidance and examples for STEM fields to satisfy O-1A evidentiary requirements. See the USCIS Policy Manual and Appendix for more information.
For those in the arts (O-1B), “extraordinary ability” means “distinction”, which is defined as a high level of achievement in the field, “evidenced by a degree of skill and recognition substantially above that ordinarily encountered”, to the extent that they are prominent, renowned, leading, or well-known in the field of arts. See the USCIS Policy Manual and Appendix for more details.
For individuals in the motion picture or television industry (O-1B), individuals must prove “a record of extraordinary achievement”, which is “evidenced by a degree of skill and recognition significantly above that ordinarily encountered”, to the extent that they are recognized as outstanding, notable, or leading in the motion picture and/or tv industry. See the USCIS Policy Manual and the Appendix for more information.
There are additional visas available for persons accompanying O-1 workers to the U.S. The O-2 work visa is available to support personnel that are an “integral part” of the O-1A’s performance. The O-3 dependent visa is available to spouses and children under the age of 21 of O-1A, O-1B, and O-2 work visa holders. Unlike O-1 and O-2 visa holders, O-3 dependents cannot work in the United States. O-3s can, however, pursue studies on a full- or part-time basis in the U.S.
The initial period of stay for an O-1 visa holder (and accompanying O-2 and O-3s) is a maximum of three years. Thereafter, O-1 extensions based on the same event or activity that was the subject of the initial O-1 petition can be granted in one-year increments. It is possible, however, that a new event or activity can provide the basis for a full three-year extension of stay. Unlike the H-1B and L-1 visa categories, there is no limit on the maximum total time individuals can hold O-1 status.
Like H-1B and L-1 visas, the O-1 category requires an employer or agent petitioner to file the O-1 petition and supporting documents with USCIS. The petitioner generally is required to provide a written advisory opinion from an appropriate peer group, labor organization (if applicable), or an individual with expertise in the O-1’s field of endeavor that confirms the O-1’s extraordinary ability or achievement. See the USCIS Policy Manual for more information.
“Whilst working through immigration matters can be somewhat daunting, there was never a time in working with Susan that we did not look at every potential possibility and outcome,” shared one of our O-1 and EB-1A clients, a professional in the culinary entertainment industry. “I’m so grateful to Susan and the team at ImLaw for not only looking after me, but also achieving the best results.”
Employment-based First Preference (EB-1) I-140 Immigrant Petitions
EB green cards are divided into five preferences. The EB-1 category is designed for individuals with extraordinary ability in the sciences, arts, education, business, or athletics (EB-1A); outstanding professors and researchers (EB-1B); and certain multinational managers and executives (EB-1C). Unlike most employment-based green card categories, EB-1A does not require employer sponsorship. Individuals can self-petition for the EB-1A category. As an added bonus, the EB-1A category does not require the extra step of PERM labor certification.
Like their O-1A nonimmigrant counterparts, EB-1A extraordinary ability candidates must prove “extraordinary ability” as demonstrated by sustained national or international acclaim. EB-1As must also prove that they intend to continue to work in their area of expertise and that their entry will substantially benefit the U.S. in the future. For more information, see the USCIS Policy Manual.
In assessing “extraordinary ability”, USCIS must evaluate the submitted evidence by a preponderance of the evidence standard (i.e., that the assertions or claims are more likely than not to be true) to determine whether the petitioner has received a major, internationally recognized award or met at least three of the ten regulatory criteria. See the USCIS Policy Manual for more details.
Even if EB-1A applicants satisfy at least three of the ten evidentiary criteria, USCIS will conduct a Final Merits Determination, which is an evaluation of the submitted petition and evidence in its totality within the context of the high level of expertise required for the EB-1A classification. Applying the preponderance of the evidence standard, USCIS will determine whether the individual “has sustained national or international acclaim and that their achievements have been recognized in the field of expertise, indicating that the person is one of that small percentage who has risen to the very top of the field of endeavor.” See the USCIS Policy Manual for more details.
Another EB-1A and O-1A client, a health science startup, shared, “The ImLaw team is knowledgeable and responsive. I can tell you firsthand they ‘get it.’ They understand the urgency of bringing in and retaining our global STEM talent to meet our daily mission of saving lives.”
Looking for Possibilities
With numerous backlogs and limited availability impeding other more traditional work visa and green card routes, the O-1 and EB-1A can be valuable alternatives. Additionally, the Biden administration has provided more incentives for professionals in STEM (science, technology, engineering, and math) to successfully pursue these pathways, which are included in the updated USCIS Policy Manual. See the USCIS Policy Manual for more information.
The experienced team of attorneys at ImLaw has worked with many candidates to successfully demonstrate and document their extraordinary ability to USCIS. Notably, the O-1 and EB-1A categories are not limited to a particular industry or occupation. ImLaw has represented a wide variety of clients. Here are just a few examples:
A tech entrepreneur who has invented proprietary financial software that garnered commercial interest
A celebrity chef and author who has hosted his own nationally broadcast TV show
An artificial intelligence (AI) expert engaging in and publishing groundbreaking medical research
A world-renowned children’s choral conductor performing in international music festivals
An internationally published physician delivering state-of-the-art lifesaving cancer treatment
A manager of sustainability for a multinational manufacturer
A Christian author writing in a specialty religious subject area
An up-and-coming jazz saxophonist in the U.S., nationally recognized in his home country, performing in prestigious international festivals and events
An R&D physicist and professor performing unique research in photonics with publications in internationally circulated scientific journals
To determine if an individual is qualified for the O-1 and/or EB-1A category, ImLaw attorneys will start by getting to know the candidate and his/her qualifications through an initial consultation. Get started by filling out our easy online inquiry form.