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O - Extraordinary Ability in Arts/Sciences/Business

The O nonimmigrant visa category is reserved for foreign nationals who have "extraordinary ability". Pursuant to this nonimmigrant category, the alien may be classified under section 101(a) (15)(O)(i) of the Act as an alien who has extraordinary abilities in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry. 8 CFR Sec 214.2(o)(1)(i).

The O-1 visa classification applies to: (1) an individual alien who has extraordinary ability in the sciences, arts, education, business, athletics which has been demonstrated by sustained national or international acclaim and who is coming temporarily to the United States to continue work in their area of extraordinary ability; or (2) an alien who has a demonstrated record of extraordinary achievement in motion picture and/or television productions and who is coming temporarily to the United States to continue work in the area of extraordinary achievement. 8 CFR Sec. 214.2(o)(1)(ii).

The regulations give the practitioner some guidance regarding the referenced legal standards. "Extraordinary ability" in the field of the arts means distinction. Distinction means high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading or well-known in the field of the arts. 8 CFR 214(o)(3)(ii).

"Extraordinary ability" in the field of science, education, business, or athletics means a level of expertise indicating that the person is one of the small percentage of individuals who has risen to the very top of his/her field of endeavor. 8 CFR 214(o)(3)(ii). "Extraordinary achievement" with respect to motion picture and television productions, as commonly defined in the industry, means a very high level of accomplishment in the motion picture or television industry evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent that the person is recognized as outstanding, notable, or leading in the motion picture or television field. 8 CFR 214(o)(3)(ii).

The standards in the O nonimmigrant visa category appear to have been left intentionally vague. The regulations list evidentiary criteria that may be utilized by the practitioner to meet the threshold standards set forth in the regulations for this nonimmigrant visa category. 8 CFR Sec. 214.2(o)(3)(iii) through 8 CFR Sec. 214.2(o)(3)(v). If the practitioner is pursuing the O nonimmigrant visa classification for his/her clients, it is extremely important that the evidentiary criteria be approached creatively.

For example, one aspect of demonstrating "extraordinary ability" may be to show that the foreign national has commanded a high salary. If the facts and circumstances of the case do not enable the practitioner to demonstrate a high salary, perhaps it may be argued that the foreign national accepts a lower salary due to the "psychic remuneration" that is gleaned from performing certain types of services. This is only one example of the may ways in which the practitioner might creatively approach the regulations and guidelines for this nonimmigrant visa category.

Petitions for the O nonimmigrant visa category are made to the Regional Service Center on USCIS Form I-129 with the O nonimmigrant visa supplement. 8 CFR Sec. 214.2(o)(2)(i). Family members of the O-1 receive O-2 nonimmigrant visa classification. One, very specialized, aspect of the O nonimmigrant visa category is that the petitioner must submit, to the USCIS, an "advisory opinion" or consultation of a peer group in the area of the alien's ability (which may include a labor organization), or a person or persons with expertise in the area of the alien's ability. 8 CFR Sec 214(o)(5)(ii).

The O nonimmigrant visa is initially granted for the duration of the event in which the foreign national shall participate but it shall not exceed a three (3) year period. Extensions of stay may be authorized in increments of up to one year. 8 CFR Sec. 214(o)(12)(ii). From the regulations it appears that extensions may be available for an indefinite period as long as the beneficiary is continuing or completing the same event or activity for which he or she was initially admitted.

Denials for requests for extensions of stay by the O nonimmigrant visa petitioner, and beneficiary, may not be appealed. 8 CFR 214(o)(12)(iii). Similar to the regulations in the H-1B nonimmigrant visa category, if a O nonimmigrant's employment is terminated for reasons other than voluntary resignation, the employer (present and/or former) may be liable for the reasonable cost of return transportation of the alien abroad.

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