Understanding the O-1 Criteria: A Mermaid of Extraordinary Ability

by Alexis Roblan


One of the main visa types we deal with at our firm is the O-1 nonimmigrant visa for individuals of extraordinary ability. We previously dealt with some common misconceptions about this visa type and now, to explore it in a little more depth, we offer a fictional meeting between a potential client and her lawyer, discussing her potential petition for O-1 classification.

This isn’t, however, just any potential client. The Little Mermaid is a classic fairy tale about a mermaid princess with a beautiful voice, who falls in love with a human prince at first sight and sells her voice to a sea witch in order to follow him onto land and make him fall in love with her. In an attempt to make the story a little less tragic, and help illustrate the requirements for an O-1 visa, we’re imagining up a scenario in which the Little Mermaid meets with a lawyer to more sensibly discuss her temporary immigration options, rather than immediately going to such drastic measures.

The Little Mermaid and Pat, a fictional US immigration attorney, meet in a grand room within the Little Mermaid’s undersea palace. To accommodate the underwater location, Pat is wearing scuba gear and has acquired technology to speak underwater.

The Consultation

LITTLE MERMAID: Thank you for meeting with me.

PAT: I don’t usually make house calls, but I understand it’s difficult for you to travel outside of the ocean.

LITTLE MERMAID: I’ve been reading some online articles, and I think I’m interested in an “O-1” visa. I think three years is enough time.

[Offering a plate]

May I interest you in some kelp?

PAT: No, thanks. Enough time for what, exactly?

LITTLE MERMAID: I’ve fallen in love with one of your people.

PAT: Oh! Well that might make this easier. Is there a possibility of marriage? How long have you two been seeing each other?

LITTLE MERMAID: Yes, there is a definite possibility of marriage. But we haven’t actually spoken yet.

PAT: …That seems impractical.

LITTLE MERMAID: Which is why I need three years to convince him! At first I was looking at US universities, but that seemed silly since I already have two degrees: a Bachelor’s in Battling Evil in the Sea with a minor in Spells, and a Master’s in How to be Royal.

PAT: …Okay. So we will eliminate the student visas and also perhaps the H-1B since I am not sure what job would relate to those degrees. But let’s talk about the O-1 visa. That classification is specifically for individuals having some kind of extraordinary ability in their field. What sort of work do you do?

LITTLE MERMAID: I’m a princess.

PAT: Hmm. I don’t think “monarch” usually counts as a skill set.

LITTLE MERMAID: My friend got a visa last year, and she said all I needed was to be rich and famous. I’m a princess, so—

PAT: Do you have any other qualifications? Talents?  What would you do while you were waiting for your prince to come along?

LITTLE MERMAID: I can sing.  Your people always ask me to do concerts and perform.

PAT: Does anyone ever pay you to sing here?

LITTLE MERMAID: Yes, I give concerts to all kinds of sea creatures!

PAT: Have you been performing long?

LITTLE MERMAID: Oh since I could speak, but only six years publicly. Before that it was just for the Royal Court…is that enough?

PAT: Yes. That’s promising. Is there a US company that might sponsor you?

LITTLE MERMAID: Sponsor—?

PAT: As a singer, you might be eligible for something called an O-1B visa, but we’ll need to prove that you have extraordinary ability in the arts, and you’ll need to be sponsored by a US company.

LITTLE MERMAID: My uncle owns a salmon fishery in Alaska, so he could sponsor and I could just go in search of the guy I fell in love with…

PAT: The petitioning company needs to hire you—you need to actually work for the company or be represented by the company if it is an agency.

LITTLE MERMAID: I could sing at the fishery. Baby salmon love me!

PAT: I’m thinking more like an agent or manager. Under an O-1 visa, all your productive work in the United States must be arranged and paid for through the petitioning company. That could be one job with one organization—if your uncle’s salmon fishery has a particular need for a singer, for instance, to sing lullabies to the salmon in order to aid their growth, they could potentially hire you for a three-year period. But if a US agent represents you, he or she could get you bookings with all kinds of different clients, tours, and concert venues, and all of that work would be valid under your O-1 status, as long as it is paid through your agency.

LITTLE MERMAID: Oooh, that’s the one I want! Then I could follow the prince anywhere!

PAT: …

LITTLE MERMAID: A few months ago I did save an American man from a shipwreck who said he was an agent and gave me his card! I think I still have it around here somewhere…

PAT: Hard to read since most of the ink has washed off… but I see. Great! Now we’ll also need to prove that your abilities are extraordinary—

LITTLE MERMAID: Oh they are. Everyone says so.

PAT: Who is “everyone” exactly? We’ll need important people in your industry to write reference letters on your behalf.

LITTLE MERMAID: Everyone in the kingdom! My father, my sisters, my grandmother…they’re all very important. They’re the royal family!

PAT: What about people you’ve worked with, who aren’t related to you? We need experts in the music industry specifically. Have you ever had professional representation? Or been written about in music magazines or newspapers?

LITTLE MERMAID: [thinks] Gossip blogs are always writing about my outfits and hair!

PAT: What about articles actually discussing your voice?

LITTLE MERMAID: Yeah, there are a bunch of those. There are just more discussing my hair.

PAT: And what about professional representation? Experts who will vouch for your skill as a performer?

LITTLE MERMAID: Well, the court composer loves my voice and always writes music for me to sing. And then there are the musicians I perform with. And a few critics who always write about me in our big undersea newspapers.

PAT: That’s all wonderful! It sounds like we’ve already got a few categories!

LITTLE MERMAID: Categories?

PAT: To prove your extraordinary ability, you need to meet certain criteria, or categories of evidence—or have won a single major award, like an Oscar or Grammy.

LITTLE MERMAID: The Grammys are so political. Mermaids never win.

PAT: That’s okay, an award like that isn’t necessary. But without it, you’ll need to prove that you can meet at least three out of six lesser evidentiary categories. Those include: that you have performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation—

LITTLE MERMAID: I headlined a major benefit concert last month for victims of red tide.  I've done a few things like that over the years.  I am also featured in shampoo ads for one of the biggest brands.  I sing in those commercials as well.

PAT: Perfect! Next, are there critical reviews or other published materials we can submit to demonstrate that you’ve achieved national or international recognition for your achievements?

LITTLE MERMAID: I told you, I’m in the gossip blogs like every other day. They love my hair.

PAT: Sure, and we can include some of that. But what we really need is press discussing your achievements. You said you’ve been reviewed in major undersea publications?

LITTLE MERMAID: Yeah, I can dig up some reviews. Royals of the Ocean just did a huge spread about the most talented royals in the ocean and I was number one. Also they loved my hair.

PAT: Your work with the Royal Orchestra should count for performing in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation, and the reference letters we get from the court composer, musicians, and critics will count for “significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field.”

LITTLE MERMAID: How many categories is that so far?

PAT: Four! You already have a pretty solid case. A fifth category is “major commercial or critically acclaimed successes.” Do you have box office receipts or sales records for any of your concerts?

LITTLE MERMAID: I mean, lots of sea creatures show up when I perform, but I don’t think anyone really keeps track of tickets…

PAT: That’s okay. What about a “high salary in relation to others in the field?” What are you paid for your performances?

LITTLE MERMAID: Mostly sea shells. We don’t really use money in the ocean.

PAT: Alright. We’ll argue that you meet four out of six categories. We don’t need to talk about the sea shells. But before we get further along on your case, you’ll need to contact that agent and see if he can book you for specific events over the next three years. As a singer being sponsored by her agency, you’ll need an event itinerary—

LITTLE MERMAID: An itinerary? Can’t I just prove that I’m great and then find work once I get there?

PAT: You need to show that you will actually be employed throughout the three-year period of the O-1 visa. If you were being sponsored by an employer who was going to pay you themselves, that employer’s word and contract would be enough; however, since you are going to be sponsored by an agency, you’ll need to prove that there is ongoing demand for your talent from the clients who will be paying you through the agency.

LITTLE MERMAID: This all seems like a lot of work. But I guess it’s more manageable than making a stranger fall in love me without a voice, and being beholden to a terrifying and magical mythological villain.

PAT: I think that’s a fair statement.

LITTLE MERMAID: Great, I’ll do it! Yay! I’m going to be an O-1! I'm so extraordinary!

[The Little Mermaid bursts into song: an epic ode to US Citizenship & Immigration Services. Pat sings backup.]