Immigration Lawyers Toolbox Magazine
DECRYPTING THE O-1 VISA FOR EXECUTIVES AND BUSINESS OWNERS by MITCH WEXLER, Esq. & SARAH HALL, Esq.
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Mitch Wexler, Esq.
MWexler@Fragomen.com
Sarah Hall, Esq.
SHall@Fragomen.com
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ILT Magazine
SCIS has established the O-1 visa for candidates with “extraordinary abilities” in a variety of fields and industries. As background, the O-1 visa category has two separate “sub-categories” under which a petitioner can file, largely dependent upon the nature of the job position which the applicant will fill. The O-1A category is more suitable for applicants such as scientists, doctors, executives, and engineers. On the other hand, the O-1B category was designed for individuals in the arts, including chefs, actors, designers, producers, and more. Both the O-1A and the O-1B categories require that the applicant demonstrate extraordinary achievements within their respective industry, though the nature of the evidence each applicant submits in support of this argument is unique and dictated by the industry norms. Most often, we think of an O-1 visa as the appropriate pathway for work authorization for Nobel or Pulitzer Prize winners, as well as for high-profile actors, directors, models, and other celebrities. However, the O-1 visa category is a broader category available to more individuals than just those of media fame and notoriety. In recent years, we have had great success in receiving O-1 approvals for C-level business executives filed as an O-1A Extraordinary Ability petition. For example, a C-level executive looking to
Issue No . 3
enter or continue working in the U.S. has several options for work authorization in the US, such as the L-1 or H-1B visas; however, the L-1 intracompany transferee requires the applicant to have previously worked at a qualifying petitioning company’s office abroad for 12 months out of the previous 36, and the H-1B visa must be applied for through the annual lottery which is subject to a cap on the number of issued visas. For these reasons, sponsoring companies may look for alternative options for their executives seeking work authorization in the US. O-1 Criteria for Business Executives The O-1 visa can be a great option and valuable pathway for C-level executives to work in the US, provided they meet the high standards of this visa category. First, the applicant must have a sponsoring employer based in the United States; unfortunately, an applicant cannot directly self-sponsor their own O-1 visa without the existence of a US based employer. Further, if the applicant has not won an exceptional award such as a Nobel or Pulitzer Prize, then the individual must provide USCIS with proof of at least three of the following criteria: -
Receipt of nationally and internationally recognized prizes or awards for excellence in the applicant’s field;
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Membership in associations in the applicant’s field that requires outstanding achievements to enter;