O-1 immigration status is for individuals coming to the U.S. who have received national or international acclaim for extraordinary ability in the sciences, arts, business, education, athletics, motion picture or television industry.
O-1 immigration status requires proof of sustained national or international acclaim for extraordinary ability or achievement. Therefore, the applicant must meet a very high standard to qualify for this status. Most foreign nationals do not qualify for O-1 immigration status.
WashU sponsorship
Because of the difficulty in obtaining O-1 status and the amount of time and effort required to put together an acceptable application, WashU does not recommend this visa type unless no other options are available. If the request for the O-1 is being made because a scholar has a J-1 two-year home residence requirement, there must be a viable plan for how this requirement will be fulfilled or waived. Prior to beginning the process, all petitions filed on behalf of WashU must be discussed with the Associate Director for Scholars.
Based on the extensive documentation requirement for the O-1 application, outside legal counsel is required to file this petition. Only outside legal counsel that has been approved by the Office of General Counsel in advance will be assigned. An O-1 petition is considered the employer’s application, and thus must be coordinated through OISS. All billing for attorney fees will be through the university.
To qualify for an O-1, the applicant must meet each of the following three (3) criteria:
- have extraordinary ability within one of the broad fields of endeavor (science, art, business, education, athletics, motion pictures or television)
- extraordinary ability has been demonstrated by sustained national and international acclaim
- will work at WashU in the field of their extraordinary ability
Proving extraordinary ability requires extensive documentation unless the employee has won a prize of international acclaim. This would include a Nobel Prize, an Academy Award or a Director’s Guild Award. Otherwise, evidence must be submitted to show that the employee has sustained international and/or national acclaim in their field. USCIS gives several suggested categories of evidence, but other evidence can be provided.
An O-1 application also requires an advisory opinion written by “an appropriate U.S. peer group (which could include a person or persons with expertise in the field), labor organization and/or management organization,” to provide evidence that the O-1 applicant is extraordinary. The advisory opinion should describe the employee’s ability and achievements in the field. It must also specify duties to be performed and that the position requires the services of someone of extraordinary ability.
The employer must also describe what work the employee will be engaged in, which must comply with Department of Homeland Security (DHS) regulations.
There is a heavy burden of documentation to apply for O-1 status. In addition, the advisory opinion requirement is difficult to meet. O-1 status is employer and employment specific. The O-1 scholar may only work for their sponsor in the approved employment after the O-1 petition is approved. The employer is obligated to pay the scholar’s return transportation home if employment is terminated by the employer before the expiration of the O-1.
If a department is interested in pursuing O-1 status for a prospective employee, the department contact should reach out to the Associate Director for Scholars. The department head must approve the referral of the case to an outside immigration attorney and agree to have the charges billed to the department.
The petition for O-1 employment can be filed with U.S. Citizenship and Immigration Services (USCIS) up to one (1) year before the expected start date.
O-1 status can initially be obtained for a 3-year period and then extended in one (1)-year increments indefinitely, as long as the foreign national is engaged in the approved O-1 employment.
O-1 status allows for dual intent. Current and eligible O-1 status holders can apply for lawful permanent residence (LPR) without jeopardizing their O-1 status.
Change of status from J-1 to O-1
If a foreign national wishes to pursue O-1 immigration status because they are subject to the two-year home residence requirement 212(e) based on a prior stay in J status, they are not eligible to file an application with USCIS to change status to O-1. This does not mean that a J-1 subject to 212(e) cannot become an O-1. If the applicant is subject to 212(e), the application for O-1 is filed with USCIS. Then, if approved, the employee must go to a U.S. consulate abroad to obtain an O-1 visa. They would then re-enter the U.S. as an O-1 and begin O-1 employment.
For foreign nationals who are subject to 212(e), obtaining an O-1 visa is an added burden in addition to filing a petition with USCIS proving eligibility for O-1 status. Even with a USCIS approval, the issuance of an O-1 visa is not guaranteed. The visa application at a U.S. consulate is considered a separate application.