The O visas are nonimmigrant (temporary) visas for persons who are going to perform services for an event(s) in the United States. O visa workers are authorized to stay for the period of time that is necessary for them to complete those services. The type of workers who can qualify for O visas includes but are not limited to artists, entertainers, athletics, chefs, designers, support staff for athletes or artists, trainers…etc.
Under the O visas, the work-related events taking place in the United States can be activities that include but are not limited to a scientific project, conference, convention, lecture, series, tour, exhibit, business project, academic year, or an activity that is incidental or related to the main event such as short vacations, promotional appearances, and stopovers.
There must be a U.S. employer or U.S. agent to sponsor the O visa which means that a foreign person or foreign company cannot start the O visa petitions by themselves.
Table of Contents
There are five main sub-categories under the O visa:
- O1A visa: Person who has an extraordinary ability in the sciences, education, business, or athletics.
- O1B visa: Person who has an extraordinary ability in the arts.
- O1B MPTV visa: Person who has extraordinary achievement in the motion picture (film) or television industry.
- O2 visa: Essential support staff who will accompany and assist an O1A athlete or O1B artist in a specific event or performance.
- O3 visa: Family members (spouse and unmarried children under 21 years old) of the O1 visa and O2 visa workers.
The O1 visas are for persons who are already well-known and accomplished in their professional career. The O2 visas are for the support staff of the O1 visa workers (i.e., O1A athlete or an O1B/O1B MPTV artist) and they usually have a specific non-generic relationship with the O1 visa worker or is connected to a specific production. The O3 visas are for the dependent family members (spouse and unmarried minor children) of the O1 visa workers and the O2 visa workers.
The O visas are employment-based work visas and must be sponsored by (1) a U.S. employer, (2) a U.S. agent, or (3) a foreign employer through a U.S. agent.
O1A Visa Extraordinary Ability in Science, Education, Business, Athletics
The O1A visa is for workers who have extraordinary ability in the sciences, education, business, or athletics and have successfully maintained acclaim on a national or international level.
O1B Visa Extraordinary Ability Artists & O1B MPTV Extraordinary Achievement Artists
The O1B visa for artists is divided into 2 subcategories: O1B Arts for workers who have extraordinary ability in the arts and O1B MPTV for workers who have extraordinary achievements in the motion picture or television industry.
The O1B Arts worker must have achieved distinction in the field of arts and have successfully maintained their acclaim on a national or international level. Distinction under the O1B Arts means that the person has achieved a much higher level of skill and recognition than other workers in the same field and they are prominent, renowned, leading, or well known in the field of arts.
The O1B MPTV workers in the motion picture (film) or television industry must have achieved a much higher level of skill and recognition than other workers in the same field and they must be seen as outstanding, notable, or leading in the motion picture (film) or television industry.
In more simplistic terms, the O1 visa worker must have skills and recognition that are superior than other workers in their field of expertise which means that they are usually already a well-known figure in their professional field and not just someone who is starting out in their career.
O2 Visa Essential Support Staff
The O2 visa is for the essential (i.e., hard to replace) support staff of an O1A athlete or an O1B/O1B MPTV artist. O1A visa workers in the field of science, education, or business cannot use the O2 visa for support staff. The O2 visa is dependent on the O1 visa and cannot be filed as a stand-alone work visa petition.
There are two types of O2 visas: the O2 support staff for O1A athletes or O1B extraordinary ability artists, and the O2 support staff for O1B MPTV workers in the motion picture or television industry.
The O2 support staff for the O1A athlete or O1B extraordinary ability artist must be an “integral part” of the O1 visa worker’s performance in the United States, and must have a specific non-generic relationship with the O1 visa worker which cannot be easily replaced by a U.S. worker.
The O2 support staff for an O1B MPTV worker in the motion picture or television industry must have a specific non-generic relationship with the O1 visa worker which is either based on them already having a pre-existing longstanding working relationship with each other or because of a specific production that has significant production done in the United States and overseas and the O2 worker continued participation is essential for the production to be successfully completed.
O3 Visa Dependent Family Members
The O1 visa worker and O2 visa worker’s spouse and unmarried children under 21 years old are allowed to stay with them in the United States with an O3 visa, however, those O3 family members are not allowed to work.
The initial O1 visa grants a period of stay for up to 3 years depending on the end date submitted by the sponsoring employer or agent. Renewals of the O1 visa (extensions of stay) may be granted for up to 1 year depending on the time needed to finish the initial event or activity. There is no maximum time limit on how long a person can be on an O1 visa status and there is no limit on how many times the O1 visa can be renewed (extended), however, it is affected by how long the O1 worker needs to complete the initial event or activity.
In general, the O2 visas and O3 visas are dependent on the O1 visa which means that the amount of time they are granted for their period of stay usually follows what is granted to the O1 visa worker. For example, when the O1 visa petition and the O2 visa petition are filed together, and the O1 visa worker is granted an initial 3 years period of stay, the O2 visa would typically also be granted an initial 3 years period of stay. When the O1 visa worker’s visa status ends early because the person’s employment was terminated before the visa expiration date, the O2 support staff’s visa status will also end early on the same date that the O1 visa worker’s visa status ended.
O visa holders are allowed to enter the United States 10 days before the start date and stay an additional 10 days after the end date. However, O visa holders cannot work during those additional 20 days. There is also a 60-day grace period of authorized stay in the United States if the O visa worker’s employment is terminated before the visa end date.
Unlike the requirements of the H1 visa and L1 visa, J1 visa holders can apply for the O1 visa without fulfilling the two-year home country residency requirement or waiver requirements. However, without a waiver, the O1 visa worker will not be able to change their current J1 visa status to the O1 visa status within the United States and they would be required to return to their home country to go through consular processing.
There are 4 main steps in the general process of obtaining an O visa:
Step 1: Work Agreement with Sponsoring Employer or Agent
The O visa worker must have a contract or agreement with a sponsoring (1) U.S. employer or (2) U.S. agent (or a foreign employer that is represented by a U.S. agent) for temporary work in the United States. The foreign worker cannot file for an O visa petition by themselves and a foreign employer can only file the O visa petition through a U.S. agent.
Step 2: Written Advisory Opinion (Consultation)
A written advisory opinion (or letter of no objection of the O visa petition) must be obtained from an expert in the O visa worker’s field of expertise or a U.S. peer group (which includes labor organizations, management organizations). The written advisory opinion must include whether the person has the qualifications of an O visa worker and whether the proposed work in the United States requires a person who has those qualifications.
The written advisory opinion for O1A visa workers and O1B extraordinary ability artists would typically need to be from the appropriate labor organization (union) of their field of expertise. For O1B MPTV workers in the motion picture (film) or television industry, there must be 2 written advisory opinions which one is from an appropriate labor organization (union) and the other is from a management organization that has expertise in their specific area of ability.
The three exceptions of the written advisory opinion (or letter of no objection of the O visa petition) are: (1) an appropriate peer group (consulting entity) does not exist, (2) the O1B extraordinary ability artist (does not include O1B MPTV workers in the motion picture or television industry) had a written advisory opinion submitted within the past two years and will be continuing to do similar work as listed in the previous written advisory opinion, or (3) an expeditious handling of the O visa petition is requested in the event of an exigency before a written advisory opinion can be obtained.
Step 3: Filing the O Visa Petition (Form I-129)
The U.S. sponsoring employer or agent files the O visa petition (Form I-129) with the USCIS at least 45 days before the start date of the work-related event in the United States. The O visa petition cannot be filed over 1 year before the start date of the work-related event in the United States.
Step 4: Consular Processing or Change of Status
After the O visa petition (Form I-129) is approved by the USCIS, the person would need to change into their O visa status which involves either consular processing at the U.S. consulate or embassy overseas (usually in their home country) or a change of status in the United States.
Change of status is usually for a person who is already in the United States with another valid nonimmigrant visa status and has maintained a lawful visa status throughout their time in the United States. On the other hand, consular processing is for a person who lives outside the United States or for a person who is ineligible to change their status in the United States due to noncompliance of U.S. immigration law (e.g., overstayed on their previous visa status, worked when they did not have valid U.S. work authorization, the visa status they used to enter the United States does not allow them to change into another type of visa status, etc.)
Person Outside U.S. (or Person Ineligible for Change of Status)
For a person who is residing overseas (outside the United States) or a person who is ineligible for a change of status with the O visa petition (Form I-129), consular processing must be done to obtain the O visa status. Consular processing involves the person attending an in-person interview at the U.S. consulate or embassy usually in the person’s home country. In some certain circumstances, a person can do consular processing in another country as a “Third Country National.”
After the interview approval at the U.S. consulate or embassy, the person would have to be admitted entry into the United States by the CBP officer at the border (usually at the airport) which means that the person would have to physically enter the United States as the final step for the O visa status to be activated.
Person Residing in the U.S. (Maintained Lawful Visa Status)
For a person who is already in the United States with another valid nonimmigrant visa, there are usually two options available to obtain the O visa status:
(1) Change of Status: this is the more commonly chosen option where the person states that they would like to change their status without leaving the United States in their O visa petition (Form I-129). If the person is eligible (no violations of U.S. immigration laws), then their nonimmigrant visa status will be changed upon the approved employment start date listed in the O visa petition. In cases where the person’s change of status request is denied or the person needs to change it into consular processing, an application for action on an approved application or petition (Form I-824) may be required.
(2) Consular Processing: this must be chosen if a person cannot show that they have maintained lawful visa status in the United States or for any other reasons such as the person needs to travel internationally before the O visa petition is approved.
The total time an O visa takes is consisted of the processing time for the (1) O visa petition (Form I-129) with the USCIS and the (2) visa application (DS-160) at a U.S. consulate or embassy overseas if the person is not already in the United States or is ineligible to do a change of status within the United States.
Factors that influence the O visa petition processing time usually include but are not limited to if there was any Request for Evidence (“RFE”) issued, and the caseload of the USCIS service center and the U.S. consulate or embassy.
Premium Processing for Form I-129 (Expedited Service)
A rough estimate for the Form I-129 petition for the O visa is around 3 to 4 months. However, a 15-day premium processing (Form I-907) is available for the Form I-129 part of the O visa petition. Premium processing is an optional expedited service where the USCIS guarantees that the case will be processed within 15 calendar days (not business days). When a notice of intent to deny (NOID) or a request for evidence (RFE) is issued, a new 15 calendar days will start when the USCIS receives a response from the applicant. If the USCIS fails to process within the time frame, a refund of the service fee will be given and the case will continue to be expedited. Please note that USCIS’s guaranteed response may be an approval notice, denial notice, notice of intent to deny (NOID), request for evidence (RFE), or open an investigation for fraud or misrepresentation.
The current premium processing fee for the O visa is $2500 USD and it can be requested when the original petition is submitted to the USCIS or an upgrade to premium processing can be done when the case is pending.
Unlike the H1B visa, (1) there is no lottery restriction for O1 visas because no limitation is placed on the amount of O1 visas that can be granted in a fiscal year, (2) the O1 visa does not have a prevailing wage requirement (a set minimum wage) because the U.S. Department of Labor is not involved in the process, (3) the O1 visa has no minimum degree or license requirements but it already has a higher standard on who can be qualified on the outset, (4) the O1 visa worker is not required to have a W2 employer-employee relationship with their U.S. sponsoring employer (or agent), and (5) J visa holders who are subject to the 2-year home residency requirement can be eligible for O1 visas but will have to go through consular processing if they do not obtain a waiver to change their status in the United States.
Dual intent visas allow the foreign person to have both an intent to temporarily stay in the United States and an intent to permanently stay in the United States. The intention to permanently stay in the United States can be shown when the foreign person has a pending green card petition with the USCIS or an approved PERM labor certification from the U.S. Department of Labor.
The O1 visa is a dual intent visa which means that it is possible for the person to have a green card (permanent residency) petition pending while still being able to maintain and extend (renew) their O1 visa status in the United States. In comparison, the O2 visa for the foreign support staff of the O1 worker is not a dual intent visa. The O2 visa requires the foreign person to maintain a residence (home address) overseas that they have no intention in abandoning which means that the foreign person is not allowed to have the intention of staying permanently in the United States and having a pending green card petition will interfere with their eligibility to maintain and extend (or renew) their O2 visa status in the United States. For example, if an O2 visa holder leaves the United States after they have filed a green card petition (which is an intent of permanently staying in the United States) with the USCIS, it would be likely that they will not be allowed to back to the United States with their O2 visa because it is not a dual intent visa and only allows the foreign person to have an intention to temporarily stay in the United States.
The O1 visas are temporary U.S. work visas for persons (in the sciences, arts, education, business, or athletics) who are already well-known and accomplished in their professional career. The O2 visas are for the support staff of O1A athletes or O1B artists who will be supporting the O1 visa worker’s performance in the United States. The O3 visas are for the dependent family of the O1 visa workers and the O2 visa workers. O3 visa family can study in the United States without needing to change into an F1 visa student visa, however, they are not allowed to work in the United States with their O3 visa status.
If you have an O work visa (science, arts, education, business, athletics, or support staff) immigration question, please fill out our contact us form or send us an email with some basic information about your background and your immigration needs. We will do our best to respond within 48 hours.
How we can help?
Kylie Huang Law’s immigration attorney will help identify whether the O visa is the appropriate nonimmigrant visa category for the client’s (or the client’s beneficiary’s) professional background and if there are other visa options for the client (or the client’s beneficiary). We will work closely with our client to prepare a convincing case for their (or it’s) O visa petition and we will also strategize on how the O visa petition should be presented to achieve the best chances of approval. It is strongly advised and common practice to retain an immigration attorney for an O work visa petition due to the complexities in the immigration process and visa requirements.