The O-1 Visa: Top 10 Misconceptions

by Protima Daryanani

We originally published this post back in 2013 (as 5 misconceptions), and it has consistently ranked as one of our most read posts. And for good reason: the O-1 visa category is one of the most popular, especially for those who work in the arts, design, and film and television (although, as we discuss below, the O-1 can be a good option for all sorts of professions and industries). Since it’s been a number of years, we wanted to add some updates and clarifications and, yes, a few more misconceptions that often come up for foreign nationals who already have an O-1 or are interested in obtaining this visa type .  - Protima

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, the 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 they are 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 belongs to me and I can go to a new employer after it is approved

This is closely related to the first point. As mentioned above, every O-1 is tied to a specific sponsor. Additionally, the O-1 is the sponsor’s application on behalf of the foreign national.  As such the O-1 does not “belong” to the foreign national. In practical terms, this means that the O-1 foreign national cannot simply take their approved O-1 and start working with a new sponsor if they wish to move employers or agents. Instead, if they leave their current sponsor, the O-1 petition ceases to be valid. The new sponsor must file a new O-1 petition for the foreign national so that the individual can commence working with the new sponsor.

3. The O-1 is an “artist” visa

Though commonly referred to as the “artist” visa by foreign nationals, the O-1 is for individuals 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 the 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

In a separate post, we discuss in more depth O-1 requirements and who may qualify through a fictional conversation between a client (who happens to be a well-known sea creature) and a lawyer. We also have a post focusing on O-1s for non-artists.  Additionally, we have discussed in more detail O-1s for chefs, architects, musicians, graphic designers and art/creative directors, fine artists, fashion models, entrepreneurs, and for those in the film and television industry.  Lastly, we have addressed O-2s (essential support personnel) as well as common questions and unique issues surrounding union and peer group consultation letters for O petitions.   

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

While a major internationally-recognized award can certainly qualify a foreign national for an O-1, 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—which, 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 three (3) of eight (8) different possible categories of evidence, including letters from experts, authorship or articles, and the earning of a 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 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 three (3) of six (6) 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 three (3) of six (6) 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. On their website, USCIS has included the full evidence category lists for the O-1A and O-1B.

5. I need to be “Adele” (or at a very similar level) to qualify for an O-1

Closely related to point four is the common misconception that O-1 holders must be at the level of a superstar such as Adele to qualify for an O-1. While the standard for the O-1A is higher than the O-1B, nowhere in the regulations does it suggest or state that O-1A or O-1B applicants must be a “superstar” or a household name. Immigration realizes that evaluating someone’s extraordinary ability is highly subjective.  The objective criteria mentioned above serve to make the process more equitable. Practically, there are potentially many individuals working in their respective fields who—while perhaps not well known to the general population—may nevertheless qualify for an O-1.     

In the same vein, many think that only the highest person in a company, or the leader of the team, would qualify for an O-1 and that is not always true. Certainly only those who play significant roles will likely be eligible for an O-1, but in a team, several people may play critical roles and as such several team members may qualify for an O-1.

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

O-1s can be sponsored by a US–based company or agent, but foreign national O-1 beneficiaries 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 agent is the representative of both the employer and the beneficiary; or, the agent is 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 that US business to sponsor the O-1 entrepreneur.

7. 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 generally 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.

8. I can do an “O-1 transfer” if I change employers

Sometimes, as happens in life, employment situations don’t work out as planned. In the case of an O-1, individuals may want to leave their employer or agency and obtain a new sponsor. While that is certainly possible, it is not, legally speaking, possible to just “transfer” the O-1 visa. Instead, the new sponsor must file an O-1 petition on behalf of the foreign national as mentioned above. Certainly the change of employer application is less cumbersome than the original filing in many cases, but there is no such thing as a “transfer” of the O-1 and if foreign nationals wish to change agencies or employers, they need their new agent or employer to file a new O-1 on their behalf. 

9. I currently have an O-1 so USCIS will automatically approve all future O-1 petitions

O-1’s are reviewed by individual officers who bring their own individual perspectives to the case. While one officer may conclude, after reviewing the objective criteria, that an individual is qualified, another may not. This is most apparent in “borderline” O-1 petitions. First, it is important to remember that an O-1 is for an individual of extraordinary ability, and not necessarily a student or recent graduate. While foreign nationals need not have won a Nobel Prize or Oscar, they do need to show some distinction in their professional career. It is not sufficient to excel as a student. Over the course of our practice, we have seen approvals for petitions not filed by our law firm that perhaps shouldn’t have been filed in the first place since the individual was not O-1 caliber (in our subjective opinion). Foreign nationals were “lucky” with their first approval. In these cases, just because a foreign national has received an O-1 approval, doesn’t mean that the next O-1 will be approved as easily or at all. Additionally, immigration rules and regulations are always changing and the guidelines in place at the time of the original approval may no longer be in place when a subsequent case is filed.

For example, in a change of policy, immigration will now review every petition like it is a new one. In October 2017, USCIS issued a new policy memorandum that instructs its officers to apply the “same level of scrutiny to both initial petitions and extension requests for certain nonimmigrant visa categories.” This means that no deference is given to individuals who were previously approved for an O-1. For individuals who are looking to file new O-1 petitions, USCIS will closely scrutinize the petition to determine if the beneficiary qualifies for the O-1 to ensure, among other things, that the new position is not “low level.” Therefore, if the case was borderline in the first place and even if it was not, change of employer applications and extension petitions may not automatically be approved and foreign nationals should not assume one O-1 approval guarantees a subsequent O-1 approval.

10. Since I qualify for an O-1, I can easily get an EB-1-1 “extraordinary visa” Green Card

Since both the O-1 and the EB-1-1 include “extraordinary” in their requirements, it’s not surprising that those who hold the O-1 often believe that they can easily qualify for an EB-1-1 Green Card. While some O-1 holders are certainly eligible and many successfully obtain an EB-1-1 Green Card after maintaining O-1 status, the EB-1-1's “extraordinary” standard means a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor. This standard, while similar to the O-1A standard in theory, is in practice an even higher level of extraordinary than the O-1A, in part because of how closely the evidence is scrutinized in an EB-1-1 petition. Foreign nationals considering applying for a Green Card should consult with an experienced immigration attorney.

There they are, our ten misconceptions.  Any others you can think of? Feel free to send them to us on social media and will be happy to include in our next post. Who knows how many more we’ll have in a few years’ time!