The O-1 Visa: Not Just For Artists Anymore

Tuesday, September 23, 2014 - 09:50

For employers increasingly frustrated by the acute shortage of H-1B visas – as witnessed by the breathless exhaustion of the FY 2015 quota this past April – not all hope is lost.  The O-1 visa for extraordinary ability presents a valuable option for bringing in high-level executives and qualified professional employees whose H-1B’s were not selected in the federal government’s annual lottery. Deceptively referred to in common parlance as the “visa for artists,” the O-1 is often mistakenly overlooked or dismissed by corporate employers. Nevertheless, statistics do show that at least some have gotten wind of the value of the O-1, as consular posts abroad have seen a 34 percent rise in the number of these visas issued during the last four years. This comes at a time when the annual H-1B cap of 85,000 has been met in less than one week in the last two fiscal years, with 172,500 applications filed in 2014 alone.

The O-1 visa category is split into two distinct subgroups: the O-1A for individuals with an extraordinary ability in the sciences, education, business, and athletics; and the O-1B for individuals with an extraordinary ability in the arts. This article will focus on the O-1A and its value to corporate employers. From the onset, it is important to note that the O-1 is not a visa for everyone. It is typically utilized for professional employees with deep experience and notable accomplishments under their belt. That is not to say, however, that a brilliant graduate student who invents a novel research method that has potential to change a given market could not qualify.

For O-1 purposes, it is all about meeting a demanding regulatory standard and adequately explaining how the beneficiary meets the definition of “extraordinary.” In order to qualify, a beneficiary must, at a minimum, be able to meet three of eight enumerated criteria, including being able to demonstrate (1) important original contributions to the field, (2) judging the work of others, (3) high remuneration, (4) work in a critical capacity for a well-reputed organization, (5) receipt of nationally or internationally recognized prizes, (6) membership in a selective professional association, (7) materials written about the individual in important publications, and (8) authorship of scholarly articles published in professional journals. Defining the area of specialization properly from the onset can significantly narrow the number of individuals against whom the visa applicant will be compared in a given field and strengthen an otherwise shaky case. 

Given the fact that the world of business is driven more by profit generation then pure academic scholarship, it is important to strategize and identify the evidentiary criteria that are most relevant to the beneficiary’s expertise at the inception of the case. While employers sometimes struggle to demonstrate that an individual has made original contributions, generated press about their work, or received national or international recognition, they conversely may be able to demonstrate high remuneration, critical capacity, and membership in a selective professional association with greater ease. Essential to building a successful case are testimonial letters from experts in the field which discuss why the beneficiary meets certain criteria and should in essence be considered “extraordinary,” as that term is defined. More an art than a science, these testimonials must help impress the immigration adjudicator by presenting clear evidence of the enumerated criteria while at the same time substantiating the letter writer’s credentials to offer such an assessment.

In the past, our firm has often been successful in utilizing the O-1 in situations where an individual was rejected for the H-1B lottery and did not qualify for an L visa as an intracompany transferee (a classification that requires the applicant to have been employed with a foreign affiliate or subsidiary for at least one of the three preceding years). As an example, we recently secured an O-1 for a management consultant in the pharmaceutical and medical field despite the fact that he had only been awarded his post-graduate degree a year ago. Relying on articles he had penned and strong testimonial letters, we were able to successfully demonstrate that this individual had performed in an essential capacity during his work as a graduate researcher and post-graduate fellow. Examples like this, although perhaps not the norm, evidence the flexibility of the O-1 as a tool for corporate employers faced with a tumultuous and competitive job market and a lack of H-1B visas.

After securing an O-1 for one of our corporate clients’ employees, we are often asked if this will automatically lead to a green card. The answer is that receipt of an O-1 does not guarantee that an individual will qualify for permanent residence on the basis of extraordinary ability – a harder standard in application. However, making a strong O-1A case may make it easier for an employer to later document the extraordinary ability of a well-qualified employee, making the green card process less time-consuming and burdensome in the long run. In fact, it is common to cite work performed as an O-1 to strengthen the credentials of the beneficiary when applying for a green card. Finally, unlike an H-1B, the O-1 can be renewed indefinitely and does not require the employer to file a Labor Condition Application for each worksite, offering valuable elasticity in movement. 

Given the challenges of the H-1B cap, the lack of a quota for O-1 visas, and the associated benefits of the classification, the O-1 must be viewed as more than just a visa for artists; it can indeed be a valuable tool in meeting your company’s hiring needs. 

Michael D. Patrick is a Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in its New York office. He may be contacted via email at mpatrick@fragomen.com. Mikhail Izrailev, Contract Attorney, and Nancy Morowitz, Counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, please visit http://www.fragomen.com.