The Advantages of O-1 Visa and O-1 Status, and Other Important Issues
1. Key Features of the O-1 Visa
O-1 visa is for alien who has evidence to prove "extraordinary ability" in his/her field of sciences, education, arts, athletes, and business. The qualified O-1 nonimmigrant enjoys the benefits which are not allowed in other employment-based nonimmigrant categories.
The O-1 visa category offers several advantages over other types of work visas. No annual limit exists on the number of visas issued, and O-1 visa holders may pursue permanent U.S. residency. Some O-1 holders may petition for a U.S. Green Card without the need for Labor Certification. Some of the advantages and disadvantages of the O visa include:
The O visa holder can work legally in the U.S. for the O visa sponsor. If, however, the worker wants to change jobs, a new visa is necessary;
O visas can be issued fairly quickly;
O visas will be granted for the length of time necessary for a particular event, up to a maximum of three years, with unlimited extensions in one-year increments;
The O visa holder and family may travel in and out of the U.S., or stay continuously for as long as the visa stamp and status are valid;
A spouse and unmarried children under age 21 may accompany the O visa holder, but they may not accept employment in the United States.
2. A Good Option for H-1B Holders Who Close to Completing 6 Years in H-1B Status
The O-1 visa does not have maximum limit to the stay in the U.S. More importantly, those who reached H-1B 6-year limit or L-1B 5-year limit or L-1A 7-year limit can change to O-1 visa status.
As many people are aware, there is a 6-year maximum period of stay in H status, periods of stay in all types of H status are added together. For persons awaiting completion of green card processing, this time limit can be a major cause of stress. But for O-1 status, there is no maximum period of stay. Therefore, the O-1 is another option to consider for those who may be close to completing 6 years in H-1B status. Also, when the H-1B cap has been reached, it is a good alternative for those who qualify to apply for O-1.
3. No Annual Cap and Labor Condition Application
There is no maximum number of O-1 nonimmigrant that may be admitted annually to the United States. The O-1 visa does not have an annual cap unlike H-1B, while it enjoys dual-intent like H-1B. Also, O-1 visa is not subject to the Labor Condition Application unlike H-1B. Accordingly, O-1 visa application is free from various restrictions such as wage, location of work, etc.
There are many other privileges which are given to this visa category. Since the process demands a sort of clearance from the peer group or organization, it does not face hostility from the U.S. labor forces.
4. A Person in J1 Status Subject to the Two Year Home Residency Requirement Is Eligible for O-1 Status
Another important aspect of O-1 visa/status is that it is a viable status to seek for aliens subject to the two year foreign residency requirement of the J1 exchange visitor program. The O-1 visa is a good option for a J1 holder who is subject to the two year home residency requirement and can not obtain a J1 waiver. Such person can not apply for the H-1B visa, but can apply for the O-1 visa.
Many persons who hold or have held J1 or J2 status are not permitted to obtain H-1B or L1 visa status until they and/or the primary J1 status holder has spent two years in his/her home country after the expiration of the J1 status, or a waiver of the two year residency requirement is obtained. These individuals may obtain O-1 status without fulfilling the two year residency requirement or getting a waiver of the requirement. In such cases, however, the alien may not change status to O-1 in the United States, but must obtain an O-1 visa either in the home country or a third county.
5. No Maximum Period of Stay in O-1 Status
For O-1 visa, the initial period of stay can be approved for the time necessary to complete the activity for which the nonimmigrant is admitted, up to a period of three years. Extensions of stay can be granted in increments of up to one year to continue, or complete the activity for which the person of extraordinary ability is admitted. There is no maximum period of stay in O-1 status.
6. O-1 Status Applies to Athletes
O-1 Status is distinguished from other employment related statuses in that it applies to more types of work than other areas, including the athletes or entertainers. For instance, H-1B status is limited to professionals and cannot apply to athletes or entertainers as can O-1 status.
The athletes coming to the U.S. may qualify for O-1 visa or P-1 visa application. The O-1 visa category is limited to individual athlete, and is subject to high eligibility standard. The athlete must demonstrate extraordinary ability in the field, and intend to continue to work in the same area in the United States.
When considering the O-1 visa application option for athletes, it is important to consider both the athlete's past accomplishments and the proposed activity in U.S. For example, if an athlete has achieved extraordinary ability before as a basketball player but he can no longer compete in the field, then he may not necessarily be eligible for the O-1 classification as a basketball coach. Because a person who possesses or previously possessed extraordinary athletic ability, and wishes to enter the U.S. as an O-1 to coach will need to demonstrate a record of extraordinary ability as a coach.
An alternative option to the O-1 visa classification for athletes is the P-1 visa, which is generally easier to obtain than the O-1 visa. The level of achievement required for P-1 visa classification is that of "renowned, leading, or well-known in more than one country," which is somewhat lower than the extraordinary ability required for O-1 visa. Also, the P-1 visa category can be used for both individual athletes and athletic teams, and can be used for participants in both professional and amateur sports.
7. The Advantages of O-1 Visa over H-1B Visa
The O-1 visa and H-1B visa have some common requirements and characteristics. The H-1B visa allows the alien professionals in specialty occupations to work for a U.S. employer within 6 year limit. H-1B visa holders often work in fields including engineering, mathematics, science, biotechnology, and businesses.
The O-1 visa is a working visa for aliens of extraordinary ability in the sciences, arts, business or athletics. The extraordinary ability can be proved with the evidence such as scholarly publications or proof of high salary that they are at the top of their respective field. An alien applicant seeking an H-1B visa may also be able to qualify for an O-1 visa, if they can provide the necessary documentation of their extraordinary ability.
For the advantage of O-1 visa, there is no annual cap on the number of O-1 visa petitions the USCIS can approve each year, and there is no maximum number of years one can stay in O-1 status. Unlike H-1B, an O-1 visa petition does not require the Labor Condition Application (LCA) to be filed with the U.S. Department of Labor (DOL).
The real benefit of the O-1 over a H-1B is that an educational or professional degree is not essential for approval, and no prevailing wage requirement exists, and no annual limit exists on the number of visas issued.
However, an O-1 filing requires that aliens with extraordinary ability in arts to obtain an advisory opinion from a relevant peer group, which may sometimes be difficult to identify. Also, both H-1B and O-1 require an offer of employment, and O-3 visa dependents are not allowed to work in the U.S.
8. O-1 Visa's "dual intent", and Apply for U.S. Green Card to Become a Permanent Resident of the United States with O-1 status
The "dual intent" appears to be recognized by USCIS for O-1 extraordinary ability visa holders. While not statutorily recognized as "dual intent" visa like the H-1B visa and L1 visa, the O-1 visa applicants are not required to maintain a residence in the applicant's home country. The U.S. immigration regulations provide that the approval of a permanent Labor Certification or the filing of a immigrant preference visa petition should not be a basis for denying an O-1 visa application, or the extension of stay for O-1 visa holders.
However, the "dual intent" provision does not apply to O-2 visa applicants. Unlike the O-1 extraordinary ability nonimmigrant visa, the O-2 visa applicants must satisfy that he or she has a residence abroad, and no intent to abandon that residence in their home country.
While an O-1 visa applicant does not have to have a residence in the home country which he or she does not intend to abandon, there must however be an intent to remain on the O-1 visa. Therefore, the foreign national may legally come to U.S. in O-1 visa, and depart U.S. at the end of the authorized stay, and at the same time, seek to apply for U.S. Green Card to become a permanent resident of the United States. The following is an example of dual intent:
Question: I am currently working in the U.S. under H-1B status. My employer has already begun the Labor Certification process on my behalf as the first step of Green Card Application, making my intent to immigrate clear. Can I change my status from H-1B to O-1 because of the H-1B visa limit of 6 years?
Answer: The H-1B status can apply for change of status to an O-1 visa, without any risk of denial based on the demonstrated intent to immigrate, since both O-1and H-1B visas allow for dual intent on the part of alien applicants.
The H-1B visa and L-1 visas allow dual intent, although for a set maximum duration. The usual duration of an H-1B worker’s stay in the U.S. is limited to six years, while an L-1A visa is initially granted for a period of one to three years, and can be extended in two-year increments until the total stay reaches seven years.
In contrast, there is no maximum period for O-1 status, it can theoretically be indefinite. For O-1 visas the length of the status is determined by the length of time needed for the alien to perform his duties or activities with the petitioner employer, but the period of stay may be extended indefinitely if the necessary qualifications can be met. Thus, O-1 status can present a viable way to maintain stable legal status in the U.S. and continue working, while waiting for the outcome of an immigration petition.
9. USCIS' Office of Fraud Detection and National Security and Site Visit
A special office of U.S. Citizenship and Immigration Services (USCIS), called the Office of Fraud Detection and National Security (FDNS) will conduct a site visit for companies with alien workers in H-1B, L-1, or O-1 status. There may be a few red flags to trigger the FDNS to have a site visit. For example, the alien workers may be placed at a location that is different from the U.S. employer’s actual work location. These practice and work location arrangements are often occur with alien workers in the Information Technology (IT) field.
Some U.S. service companies employ many alien workers as "consultant", and assign these consultants to work for their "end client" companies at the client's locations. Because these arrangements can be confusing for USCIS, the FDNS conducts the site visits to confirm that the worksite location explanation on the non-immigrant visa application Form I-129 for H-1B, L-1, or O-1 visa is correct, and that the U.S. service companies are truly the alien worker’s employer.
It is very importance to provide true and accurate information on all H-1B, L-1, or O-1 visa applications. The USCIS' Office of Fraud Detection and National Security is very likely to conduct a site visit if the U.S. employer has previously committed immigration visa fraud. If the FDNS finds the fraud, it will carefully review all subsequent immigration petitions filed by the U.S. employer.
10. U.S. Green Card Application and Other Employment Related Visas
O-1 visa applicants do not have to prove that they will not abandon their foreign residence. In other words, O-1 visa holders can apply for permanent residency. Some O-1 holders may petition for a U.S. Green Card through the EB1-Extraordinary Ability, EB1-Outstanding Researcher or Professor, or National Interest Waiver without the need for Labor Certification or job offer.
The requirements for O-1 visa or status are similar to those for the EB1 Extraordinary Ability (EB-1A or EB1-EA), employment based permanent residence category. The difference is that the O-1 visa/status applies to those aliens seeking a non-immigrant status, while the EB-1A standard is for those seeking permanent immigrant status.
The O-1 visa/status is distinguished from other employment related statuses in that it applies to more types of work than other areas. For instance, H-1B status is limited to foreign professionals with at least a bachelor's degree for a specialty occupation, which cannot apply to alien artists, athletes or entertainers without such educational background. However, such as artists, athletes or entertainers can apply for O-1 visa/status.
Moreover, the requirements of O-1 are much higher than that of H-1B. Also, O-1 visa/status could be obtained by those in H-1B status who have exhausted the full-authorized stay of 6 years.
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