While H-1B visa provides a popular status for people to come and stay in the U.S. to work in “Specialty Occupations”, it carries a very special restriction on the requirement of meeting “Prevailing Wage”. For aliens intending to work in the U.S. temporarily for specific projects and programs, meeting prevailing wage requirement sometimes present a problem. In addition to the restriction in the form of prevailing wage, H-1B status entails college degree in a specific field, or its equivalent, for the application. This also posts a problem to professionals who do not have degree but do have profound skill in a specific field. The O visa is an especially useful category for individuals without professional degrees but who have extraordinary ability or achievements in the fields of science, art, education, business or athletics. As such, it is an attractive alternative to H-1B, especially when the H-1B prevailing wage requirement cannot be met in certain circumstance.

In addition, O visa has become the only practical shelter for visiting scholars in J status who are facing the expiration of their J status but who either need to stay in the U.S. longer to complete their research projects, or who need more time to complete their waiver applications.

To qualify, the alien first must have extraordinary ability in the above mentioned areas. The standard of “extraordinary ability” is different depending on the types of beneficiaries.

1) A higher standard is applied for scientists, educators, businesspersons and athletes. The beneficiary must prove "national or international acclaim" by proving having either received a major, internationally recognized award or meets three of the following prescribed requirements:

(i) Receipt of nationally or internationally recognized award in his field;

(ii) Be a member of certain organizations or associations in his field that require outstanding achievement;

(iii) Article or report in the major media of the alien's field about the alien;

(iv) Participate on panels or as a judge of the work of others in the alien's field;

(v) Has made original contributions to the alien's field of major significance;

(vi) Author articles in professional journals or other major media of the alien's field;

(vii) Occupy or previously occupied a position in a critical capacity for organizations that have a distinguished reputation;

(viii) Command high salary or other compensation for services for his positions

Needless to say, the document that can be submitted in support of the application is various. Sometimes document clients think of no importance can be of great help to the application. Our experience in this area if plentiful and we can provide you the greatest help in analyzing your eligibility for the status.

2) The extraordinary ability standard is much lower for artists and entertainers. Here “extraordinary ability” only means “distinction in the related field.” As such, it is not difficult for alien in art field to obtain O status.

Application for O-1 status is filed to the Service Center of the INS where the "event" will take place or where the alien will work. The application, however, cannot be filed more than six months in advance of the alien’s work. The application has to be filed by the employer or agent which sponsors the "event" or which requires the services of the alien. Frequently, that includes universities or academic institutions, companies, and athletic and performance agents. The alien can not apply for himself.

According to our experience, the processing of O-1 application at Service Centers is relatively prompt, sometimes as short as between one and one and half month. If the applicant is in the U.S., he may apply to change his status. If the application is approved, the applicant can go to the U.S. consulate at Mexico or Canada to apply for the visa. Even J-1 holders subject to the two-year foreign residence restriction can safely obtain the visa from the U.S. embassy with the O-1 approval. The visa will allow the applicant to travel freely in and out of the U.S.

One of the most special features for O-1 application is the requirement for "Consultation". According to immigration regulations, the O-1 petition must includes "consultation" with an "peer group", labor organizations, or management organizations regarding the alien's qualification and the nature of the proposed service and employment. The Consultation is the advisory opinion from the above organizations about the alien and the proposed work in the U.S. The INS will take reference to what the peer group or the labor organizations say about the qualification of the alien and the nature of the proposed employment, but is not bound by such advisory opinion.

Frequently, however, the petitioner will find no appropriate peer group or labor organization in the applied field. This is common especially for J-1 researchers or post-doctorate fellows. In that scenario, the petitioner only need to establish that no appropriate peer group or labor organization exists. INS will adjudicate the petition without required consultation.

(15-DAY PROCESSING)

From July 2001 a "Premium Process Program" is implemented for speeding processing of certain non-immigrant employment-based applications. Under this program, if the applicant is willing to pay an additional $1,000.00 "premium" to the INS, the INS will process the application within 15 days after its receipt of the application. The applicant will receive either an approval or a Request for Additional Evidence within 15 days after INS receives the application. If the application is eventually rejected, the INS will refund the paid premium.

Currently, this program applies to visa types like H-1, L-1, E-2, and O-1 applications. Certainly, for those who need to obtain the status within a short period of time, it has provided a very convenient route.

Basically, O visa allows aliens to stay in the U.S. to complete a specific "event" like completing a research program or sport season. The period of admission, therefore, can last as long as the event lasts. Depending on the length of the "event" described in the application, the INS may grant an initial admission period up to three years to allow the O applicant to complete the activity. After the three-year period, the alien may apply for extension one year at a time. There is, however, no limit on how many extensions the alien may apply.

It is clear that the criteria required for O-1 application is very similar to that required for alien of extraordinary ability in science, art and education provided under the employ-based first preference category. Hence, it is common that an O-1 later obtains permanent residency through the application for first preference as an alien of extraordinary ability. If the alien can prove that his research will generate great national interest to the U.S., he certainly can also apply for “National Interest Wavier” under the second preference. As a matter of fact, many of our clients start their journey to permanent residency from J status. They will change their status to O-1 under our assistance and at the same time seek waiver either from the country of their nationality or country of last residence, or from an interested government agency. After being in the O status, our clients will seek classification as an alien of extraordinary ability or outstanding researcher under the first preference category, or seek national interest waiver. Contact and talk to us and you will find out in detail the route ahead of you.