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Individuals with Extraordinary Abilities

(O-1 Visas and EB-1 Classification)

People with extraordinary abilities fall in two immigration categories. An alien with an extraordinary ability, and who has an employer or agent willing to petition for them, generally apply for an O-1 visa. An alien who does not have an employer to sponsor them, but believe they possess extraordinary abilities as defined by the USCIS, may self-petition under an employment-based first preference category (EB-1). Note that "EB-1" is not a visa, but an employment based classification. Although pursuing an O-1 visa or self-petitioning as an EB-1 are similar, they are not the same and each have their advantages and disadvantages. An experienced employment immigration attorney can help you understand what route is best for you and explain your chances of success.

Qualifying for an O-1 Visa

To qualify for an O-1 visa, you must possess and prove to have an extraordinary ability in the arts, sciences, business, athletics, or education and are entering the United States to participate in an "event". Your extraordinary ability must be nationally or internationally recognized through well-recognized awards and publications. Further, your recognition must not be merely regional. For example, an award that is given to a foreign national by a foreign institution, which only awards nationals of that country, is not sufficient to demonstrate an extraordinary ability. Generally, there must be extensive documentation demonstrating your achievements. Further, your entry into the United States with an O-1 visa must be for the purpose of continuing work in your area of achievement. An O-1 visa is not appropriate for "freelancers" or for people seeking to enter the United States for speculative employment. "Extraordinary ability" is discussed in more detail below.

Petitioning Process for O-1 Applicants

An O-1 applicant cannot self-petition. He or she must use a U.S. agent to file in cases traditionally involving self-employment. Alternatively, an employer can also petition for the O-1 applicant. At a minimum, you should apply at least 45 days before your intended work commences, although it is recommended to apply six months before your start date.

How Long Can I Remain In the United States with an O-1 Visa?

O-1 visas are granted in one year increments for the same event. You may extend your status with a written explanation detailing the reason for your extension of stay. Note that O-1 visas are subject to the two-year foreign residency requirement.

Who Qualifies To Self Petition Under Employment, First Preference (EB-1)?

The EB-1 extraordinary ability classification is for people who are at the top of their field, have received international acclaim, and wish to enter the United States to work in their recognized field. Further, the applicant must prove that their entry will substantially benefit the United States.

To be eligible, you must prove that you possess "extraordinary abilities". This is discussed below.

What is Considered an "Extraordinary Ability"?

Generally, the USCIS has provided guidance as to what is considered "extraordinary ability." The applicant must be the recipient of a major internationally recognized award, or, in the alternative, prove that you satisfy three of the ten requirements listed below:

  • Receipt of a lesser nationally or internationally recognized award;
  • Membership in an association requiring outstanding achievements;
  • Publication of your work in major publications or the media;
  • Serve as a judge on a panel related to your field;
  • Original contributions to your field that are of major significance;
  • Authorship of articles in professional journals or other media;
  • Work displayed in major artistic exhibitions;
  • Leading role for a reputable organization;
  • Receipt of a high salary;
  • Commercial success in the arts;

Each category can be further broken down into subcategories. In short, you must demonstrate that you are at the very top of your field and that you achieved international acclaim for your work. An experienced employment immigration attorney will showcase each of your achievements in order to satisfy the "extraordinary ability" requirement.

What is the Main Difference Between an O-1 visa and an EB-1 visa?

The fundamental difference between an O-1 visa and EB-1 classification is that an O-1 is for aliens seeking non-immigrant status, while EB-1 classification is for individuals seeking immigrant status. Unlike an O-1, the granting of an EB-1 classification will result in permanent residency. Many individuals first enter the United States as an O-1, then later self-petition as an EB-1. Alternatives may be to consider obtaining a National Interest Waiver and self-petition under the EB-2 classification. It is important to discuss your case with an experienced Irvine employment immigration attorney to determine which path is most appropriate for you.