The O-1 Visa: Top 5 Misconceptions

by Daryanani Law Group


1. The O-1 is a “freelance” visa

There is no such thing as a “freelance” work visa in the United States. With very few exceptions, nearly every work visa in the US must be sponsored by a legal and operating US company or agency. Moreover, O-1 visa will only allow a foreign national to work in the US through the US company that sponsors the O-1 petition.

That said, the O-1 sponsor does not have to be an employer in the strictest sense. Sponsors can hire foreign nationals as contractors and pay them under a 1099. Regardless of how paid, foreign nationals may only work with the sponsoring company or agency. 

Working within the parameters of the O-1 guidelines, there are ways O-1 workers may be able to feel as if they are “freelancing” in the US. For example, O-1s can be sponsored by a US company which is in business as an agent. Under this filing option, it is possible to work for multiple US clients through the O-1 agent petitioner. Another option is for the O-1 to be sponsored under multiple concurrent petitions. This will allow the foreign national to work with different US companies. For example, fashion stylists can have an O-1 petition sponsored by a magazine to work as a fashion editor and also have a concurrent (i.e. second) O-1 petition sponsored by an agent, which will allow them to work for multiple clients through the agency.

2. The O-1 is an “artist” visa

Though commonly referred to as the “artist” visa, the O-1 is for people who possess extraordinary ability in any field. Specifically,  the O-1A is for individuals with extraordinary ability in the sciences, education, business, or athletics, while the O-1B is for individuals with extraordinary ability in the arts or extraordinary achievement in motion picture or television industry. 

So while it is commonly known that the O-1 is a good option for occupations in the arts--such as photographers, painters, hairstylists, and makeup artists--a skilled immigration attorney can also make an argument for an O-1 in any field. These could include such professions as:

  • Sommeliers
  • Fragrance Experts
  • Chefs
  • Athletes and Coaches 
  • Equine Osteopaths/Holistic Therapists
  • Marketing and Branding Directors
  • Publicity Directors
  • Furniture Restorers
  • Gallery Owners
  • Agents
  • Producers
  • CEOs and CFOs

3. I need a Nobel Prize or Academy Award to qualify for the O-1

While a major internationally recognized award can certainly strengthen an O-1 petition, it is by no means a requirement. To qualify for an O-1 visa, the beneficiary must demonstrate extraordinary ability through sustained national or international acclaim. USCIS makes this determination depending on the beneficiary’s specific field of endeavor. 

Under the O-1A--again is for individuals with extraordinary ability in the sciences, education, business, or athletics--the standard of extraordinary ability requires that the beneficiary prove they are one of a small percentage who has risen to the very top of their field. To prove this, the beneficiary can demonstrate receipt of a major, internationally recognized award, OR provide evidence in at least (3) three of (8) eight different possible categories of evidence, including letters from experts, authorship or articles, and the earning of high salary.

The standard for demonstrating extraordinary ability is lower under the O-1B. Extraordinary ability in the field of arts means distinction. According to the USCIS:

Distinction means a high level of achievement in the field of the 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 art.

To prove this, the beneficiary can demonstrate the receipt or nomination for a significant national or international award, such as an Academy Award or Emmy, OR provide evidence in at least (3) three of (6) six different possible categories of evidence, including testimonial letters from experts, press, and lesser awards.

For individuals in the motion picture or television industries, the standard is again different, arguably lower than the arts standard. USCIS states:

To qualify for an O-1 visa in the motion picture or television industry, the beneficiary must demonstrate extraordinary achievement evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable or leading in the motion picture and/or television field.

Again, the beneficiary can demonstrate the receipt of a significant national or international award such as an Academy Award or Emmy OR provide evidence in at least (3) three of (6) six different possible categories of evidence, including testimonial letters, press, and a history of working in a leading role with prestigious productions.

It should also be noted that under both the O-1A and O-1B, USCIS will accept comparable evidence if the evidentiary categories do not readily apply to the beneficiary’s occupation. The full USCIS evidence category lists for the O-1A and O-1B are here (scroll down page to see them).

 4. I can sponsor myself for an O-1 visa

O-1s can be sponsored by a US–based company or agent, but O-1s cannot sponsor themselves. If an O-1 beneficiary is sponsored by an employer, the beneficiary is only authorized to work with that employer. If an O-1 beneficiary is sponsored by an agent, there are three possible scenarios for that sponsorship: the agent is the actual employer of the beneficiary, the representative is of both the employer and the beneficiary; or, a person or entity authorized by the employer to act for, or in place of, the employer as its agent.

An O-1 may also be an entrepreneur and set up as a US business. Under very limited scenarios it is possible for the US business to sponsor the O-1 entrepreneur.

 5. Since I am only going to be working in the US a few days, I don’t even need an O-1 visa

If foreign nationals will perform any productive work in the US, even if only for one day, they will need a work visa to be authorized to work in the US. This is true even when foreign nationals are working for a foreign company or paid outside of the US for the work or services. The determination of whether foreign nationals need a work visa does not depend on where or how they are paid, what entity is paying, or how many days they are spending in the US. All that matters is if productive work is physically being performed in the US. If so, then a work visa will be required. 

The validity dates of an O-1 petition are determined by an underlying work agreement and in some cases, an itinerary of events of work to be performed by the foreign national. The validity dates can be for a maximum of three years; therefore, O-1s can be issued for a one-day television commercial or photo shoot, or for a full three years of work, as long as there is a justification for the validity period requested. 

There is also no requirement that the O-1 beneficiary spend a minimum amount of time in the US during the duration of the O-1. The O-1 beneficiary can spend the entire validity period of the petition in the US, or can just come in and out of the US for the days needed to be in the US to perform work.