One of the most common visa types our law firm prepares is the O-1 for individuals with extraordinary ability or achievement. The O-1 is a temporary work visa granted in three-year increments with one-year extensions—allowing individuals of extraordinary ability to work in the United States for a single employer or sponsor. We’ve written a great deal about the O-1, from highlighting common misconceptions to imagining an O-1 consultation with a certain undersea character; however, one common misconception we have not spent a lot of time correcting is the assumption that O-1 visas are only for “artists.” While many artists are covered under this visa category, the defining characteristic of the O-1 is actually “extraordinary ability,” a distinction that can be made in nearly any field or industry.
The purpose of the O-1 is to bring extraordinary individuals to work in the United States on a temporary basis, enhancing both the US economy and culture through their contributions in various fields. Unlike visas for highly skilled workers (H-1Bs), the O-1 is not dependent upon specific training or educational requirements, and is not concerned with bringing in workers of particular skill sets which may be lacking in the American workforce. Instead, the O-1 is more subjective—focused on individuals who have shown themselves to be remarkable at whatever it is they do. It can apply to nearly any career, but requires the ability to demonstrate that applicants are significantly better, in some way, than most others in their profession. This is a visa type meant for innovators, experts, or celebrated visionaries, meant to recognize talent and offer US businesses the opportunity to recruit that talent from abroad.
While artists do make up a large portion of O-1 beneficiaries, the definition of “artist” is broader than many think, and there is an entire subset of these visas that pertains only to professions outside of the arts. This is the O-1A visa.
US Citizenship & Immigration Services (USCIS) specifies that the O-1A is for “individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry).” While both varieties of the O-1 (A and B) are dependent upon proof of the beneficiary’s “extraordinary ability,” that phrase means something slightly different in each case. For the O-1A visa, the beneficiary must be able to demonstrate through evidence that they are “one of a small percentage who has risen to the very top of the field of endeavor.” Because of the nature of the fields covered by the O-1A, the evidence provided must be a little more concrete than the O-1B (which we will cover below). This evidence could include a Nobel Prize for a scientist, sales figures and speaking invitations for a business person, or a string of championships for an athlete.
As an O-1 visa focused on extraordinary ability, the O-1A is still subjective, but because fields like business, science, and athletics offer many ways to quantify success, USCIS expects slightly more quantifiable evidence of the beneficiary’s status at the top of their field. Along those lines, the O-1A and O-1B visa types also have slightly different requirements for the types of evidence that should be provided.
For the O-1A, the petitioner (the US-based company hiring or representing the beneficiary), must provide evidence that the beneficiary has received some major, internationally recognized award (like the Nobel Prize), or evidence for at least three of eight categories. These categories demand that individuals provide evidence of nationally or internationally recognized prizes or awards, membership in certain types of associations, press about the individual in major media, original contributions of major significance, authorship of articles in journals or major media, high salary, participation as a judge of the work of others, or employment in a critical capacity for distinguished organizations.
Because, however, the O-1 is meant to cover all fields, if the above categories don’t exactly make sense in a certain industry, applicants are welcome to provide “comparable evidence” that demonstrates extraordinary ability in the specific field. A good example of an O-1A position that might require comparable evidence is a marketing director. It is possible that an extraordinary marketing director might not have authored scholarly articles, but may regularly give presentations at conferences to peers. The petitioner could argue that these presentations are the chief means by which new trends and tactics are disseminated in the marketing field, and also that the selection of individuals for these speaking engagements is the chief way that thought leaders are recognized and brought to the fore in that industry. In this way, any business, science, education, or athletic position may qualify for an O-1A visa—as long as the beneficiary is at the top of their specific field.
The O-1B visa is the specific visa category for individuals of extraordinary ability “in the arts;” however, “the arts” is not a strictly defined category. There are many fields, such as marketing and public relations, that straddle the line between business and art, and it can therefore be difficult to determine whether an individual petition should be submitted under the O-1A or O-1B category. USCIS states that the O-1B visa covers “individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry.” But what specifically are “the arts?”
One clear example of a professional who falls under the O-1B category, but who many might not initially view as an artist in the obvious sense, is a maitre d’, sommelier, or other culinary professional. We recently delved into these culinary O-1s, but it should be noted that the O-1B regulations specifically mention the “culinary arts” as an artistic discipline. In other cases, deciding whether an individual is an artist or business person is based upon an assessment of what specific traits make them extraordinary. In this case, it may be helpful to review the O-1B criteria, which differ slightly from the O-1A criteria listed above.
First of all, while USCIS requires proof that the individual has risen to the top of their field in order to claim extraordinary ability in science, education, business, or athletics (for the O-1A), extraordinary ability in the field of arts means “distinction.” Though professional success is the clearest evidence of distinction, the O-1B is less focused on that success, and more focused on the demonstration of a degree of artistic skill and recognition that is “substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.”
As with the O-1A, the petitioner can provide evidence that the beneficiary has received some major, internationally recognized award like an Oscar, Emmy, or Grammy, for example, but in this case, a nomination for any of these awards will count as well. And rather than fulfilling three of the eight categories listed above for the O-1A, the O-1B petition must provide evidence for three of the six similar, but distinct categories. These categories demand that individuals provide evidence of performance as a lead or star in productions or events which have a distinguished reputation, national or international recognition in major media, performance of a critical role for organizations and establishments that have a distinguished reputation, major commercial or critically acclaimed successes, testimonials of achievements from experts in their field, or a high salary. As with the O-1A, the O-1B also allows for “comparable evidence” in order to fit the standards of the specific field and industry in question.
Not Just Artists
Extraordinary individuals in any profession who have received a great deal of industry recognition for their talent should qualify for this three-year nonimmigrant visa. A typical O-1A beneficiary might be a CEO, marketing strategist, or professional athlete, but they could also be an athletic program director, conference organizer, or cyber security expert, among others.
The typical O-1B beneficiary might be a fashion designer, photographer, or film director, but a dog groomer might also qualify for this visa type if they can prove distinction in the field of dog grooming. Furniture restoring, auction curating, and art criticism could all fall under the O-1B as well. Indeed, while the O-1A should be used to petition for a nonimmigrant visa on behalf of someone who is quantifiably at the top of their field as evidenced by more easily definable achievements like sales and championships, the O-1B could apply to a barista if they have become so lauded for their latte art that espresso experts and culinary critics have publicly recognized this talent.
This does not mean that an O-1 visa is easy to obtain. The criteria above are meant to disqualify any individuals who are not extraordinary, and this means that the majority of people in any field will not qualify. But the subjective nature of the O-1 is also intended to allow every field, industry, and artistic discipline in the US the opportunity to work with the best individuals in the world within those disciplines. USCIS understands that each profession has its own standards—it is the work of a good immigration lawyer to explain those standards appropriately, aligning the specific requirements, achievements, and means of recognition for a given industry with USCIS’ understanding of “distinction,” or having “risen to the very top” of one’s field.