Hiring an O-1 Employee

The O-1 status is available to foreign nationals of extraordinary ability in science, art, education, business, or athletics which has been demonstrated by sustained national or international acclaim. The USCIS defines a person of Extraordinary Ability as one who possesses a high level of expertise and is one of a small percentage who has risen to the very top of one’s field. One must provide extensive evidence that his/her achievements have been recognized in the field and that they seek to enter the United States to continue work in the area in which s/he is extraordinary. The O-1 is employer-specific (requires a job offer) and the I-129 is filed with the USCIS by the employer. One cannot work for multiple employers under the O-1; however, you may have more than one employer sponsor an O-1 on your behalf, e.g., An O-1 petition has an initial period of stay of up to 3 years. Subsequent extensions may be granted may be extended indefinitely and generally granted in one-year increments.     

The I-129 O-1A Petition for Nonimmigrant Worker 

The O-1A petition must be accompanied by: 

  • An offer of employment (Offer Letter or Notice of Appointment)  
  • An Advisory Opinion - a letter from a trade or consulting organization, or a reputable peer group attesting to the beneficiary’s sustained reputation of extraordinary ability. If there is no applicable peer group, one may provide letters from experts in the field attesting to the beneficiary’s extraordinary ability.  

Documentary Requirements for O-1A, Extraordinary Ability Status 

The individual must either demonstrate a one-time achievement at the caliber of an Olympic Medal or Nobel prize or satisfy at least three of the following criteria: 

  • Receipt of lesser nationally and internationally recognized prizes or awards for excellence in the field of endeavor; 
  • Membership in associations in the field that require outstanding achievements of their members, as judged by experts in the field; 
  • Published materials about the individual in professional or major trade publications, or appearance/published materials about the individual in other major media; 
  • Participation, either individually or as part of a panel, as a judge of the work of others in the field (including having served as a reviewer/referee for articles to be published, on discussion and advisory panels, etc.); 
  • Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field; 
  • Authorship of scholarly articles in the field, as published in professional or major trade publications or in other major media; 
  • Serving in a critical or essential capacity for organizations or establishments that have a distinguished reputation; and/or 
  • Commanding a high salary or other significantly high remuneration for services, as compared to others in the field. 

O-1 Validity 

The O-1 like the H1b is a temporary status and may be issued for one and up to three years. It may be extended indefinitely. Holding O-1 status does not preclude a foreign national from applying for a change of status or for lawful permanent residence. 

A person in J1 status, who is subject to the 212 (e), two-year home residency requirement may be eligible to apply for O-1 status. The caveat is that once the USCIS approves the O-1, the individual will have to travel abroad to apply for the O-1 visa at a U.S. Consulate and re-enter the U.S. as an O-1 before working in that status. Being granted an O-1 does not remove the two-year foreign residency requirement. 

O-1’s Dependents 

The dependents (spouse and minor children) of the O-1 status are eligible for O-3 status. Your dependents may attend school, college, or university but are not authorized to work. If the principal O-1 has approved I-140 and/or a filed and pending I-485, Adjustment of Status, or Green Card Application, the O-3 may apply for an Employment Authorization Document. The foreign national employee is responsible for paying the fees related to the dependents’ status and/or visa. 

Who Pays for What? 

The hiring department is liable for paying all legal or processing fees, filing fees, and costs associated with the O-1 petition. The USCIS Fee for the I-129 Petition is $460. The petition may be expedited for a 15-day adjudication under Premium Process for an additional fee of $2500 if a business necessity is present. 

Disclaimer

The contents of this website are for informational purposes only and are not intended as legal advice. The Human Resources Department provides immigration administrative support to Texas A&M University-Corpus Christi, (the Petitioner or Employer) when it seeks to petition an employment-based petition for a faculty or staff member. We do not represent the employee. Employees are encouraged to consult with an immigration attorney of their choice, at their own expense, for advice on individual immigration matters.

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