O-1 visas are nonimmigrant visas for individuals who possess extraordinary ability in several different categories, including the sciences, arts, education, business, athletics, and motion pictures and television. The O-1B visa category is specifically reserved for individuals with an extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry.
Qualifying for extraordinary ability in the field of arts requires distinction. To demonstrate distinction, the beneficiary must have a high level of achievement evidenced by a degree of skill and recognition substantially above what is ordinarily encountered; i.e. the beneficiary is considered prominent to the point of being renowned or a leader in the field of arts.
The arts include any field of creative activity or endeavor, such as fine arts, visual arts, culinary arts and performing arts. The applicant can be the principal creator and performer or another essential person in the process, such as the director, set designer, lighting designer, sound designer, choreographer, conductor, etc. The O-1B is a particularly viable work visa strategy for digital artists, graphic designers, media technicians, performers and others possessing a portfolio of visual accomplishments.
A U.S. employer (“petitioner”) must file Form I-129, Petition for Nonimmigrant Worker, together with the applicable supplements and a check for the USCIS filing fee, on behalf of a nonimmigrant worker (“beneficiary”), in order that s/he may come to the United States to temporarily perform services. Form I-129 can be filed no more than one year and no fewer than 45 days before the beneficiary commences employment in the United States. Current filing fees can be found on the USCIS website.
The petition requires the following documentary evidence:
- Consultation: A written opinion from a peer group (or labor organization) or a person with expertise in the petitioner’s area of ability. Exceptions: If the petitioner can demonstrate that an appropriate peer group, including a labor organization, does not exist, then the decision will be based on the evidence of record. Consultations may be waived for an alien with extraordinary ability in the field of arts if the alien seeks readmission to perform similar services within two years of the date of the previous consultation.
- Contract between Petitioner and Beneficiary: A contract between the petitioner and the beneficiary or a summary of the terms governing the beneficiary’s employment.
- Itinerary: An itinerary that provides an explanation of the events or activities.
In addition to Form I-129, the O-1B application must be filed with the following evidence:
- Evidence that the beneficiary has received, or been nominated for, a significant national or international award or prize; or
- Evidence that the beneficiary meets at least three of the following criteria:
- Performed as a lead or starring participant in distinguished productions or events;
- Achieved national or international recognition, as shown by critical reviews or other published materials;
- Performed in a lead, starring or critical role for organizations and establishments that have a distinguished reputation;
- A record of major commercial or critically acclaimed successes;
- Received significant recognition for achievements from organizations, critics, government agencies or recognized experts in the relevant field;
- A high salary or substantial remuneration for services in relation to others in the field; or
- If the above criteria do not readily apply, comparable evidence may be submitted with the application to establish the beneficiary’s eligibility.
Once the O-1B visa petition is approved by USCIS, the beneficiary can apply for the visa at a U.S. embassy or consulate. If the application is approved, USCIS will grant an initial period of stay of up to three years. USCIS will determine the time necessary to accomplish the initial event or activity in increments of up to one year. The beneficiary can be admitted up to 10 days before the validity period beings and can leave up to 10 days after the validity period ends.
If the petitioner wants to request an extension of stay for the beneficiary to continue or complete the same event or activity, s/he must file the following documentation with USCIS:
- Form I-129, Petition for Nonimmigrant Worker;
- A copy of the beneficiary’s Form I-94, Arrival/Departure Record;
- A statement from the petitioner explaining the reasons for the extension.