Whether the alien is outside of the United States seeking an O-1 Visa at a consulate or is in the United States seeking to change or extend their O-1 status, the alien's prospective employer or agent must file and get an O petition approved by the USCIS. In order to do so, there is a specific process the USCIS must go through in order to verify the alien’s eligibility for O status. Generally, the employer must first make a job offer to the alien (the beneficiary). The alien must be able to demonstrate extraordinary ability in their field and be coming temporarily to the United States to work in their area of extraordinary ability.
Usually, the first step in an O petition process is obtaining an advisory opinion from an appropriate consulting entity, such as a peer group, labor organization, or management organization. The advisory opinion is to state whether the alien qualifies as an alien of extraordinary ability as provided above and whether such extraordinary abilities are required for the activities to be undertaken by the alien. If the alien is seeking an O-1B visa (for an individual with extraordinary achievement in motion pictures or television), the consultation must come from an appropriate labor union and a management organization with expertise in the beneficiary’s area of ability.
An advisory letter is not required under the following circumstances:
An expeditious handling of the petition is requested (this can only be done in the event of an exigency such as an event that the proposed O-1 alien needs to attend, before an advisory opinion can be obtained);
An appropriate consulting entity does not exist as established by the petitioner; or
ONLY for aliens of extraordinary ability in the arts, a waiver of the advisory opinion may be made because a consultation has taken place within the prior two years with regard to a previous admission to render similar services.
The O Petition
In most cases, the petitioner (the U.S. employer) will be filing an O petition on behalf of a beneficiary that is outside of the United States and they will be seeking their visa through consular processing, not a change of status petition. To file an O Petition, a prospective employer or agent must submit a Form I-129 Petition for Non-Immigrant Worker with an O/P Supplement. The alien beneficiary may not self-petition in this scenario. If an alien is already in the U.S. in O-1 status and a new employer wishes to petition for them, the I-129 will also be used to request the necessary extension of stay. The petition must be filed by a U.S. employer or the U.S. agent of an employer (either U.S. or foreign). The petition MAY NOT be filed by a foreign employer who is NOT acting through a U.S. agent.
The I-129 petition will be filed with the service center that has jurisdiction in the area where the alien will work. If services will be performed in more than one location, it will be filed with the service center servicing one of the petitioner’s locations. If the beneficiary will work concurrently for more than one employer during the same time period, each employer must file a separate petition with the service center that has jurisdiction over the area where the alien will perform services. And if the O-1 changes employers, the new employer must file a petition with the USCIS service center that has jurisdiction over the new place of employment.
If the beneficiary will indeed be working for more than one employer during the same time period, the USCIS released a memorandum clarifying the procedure for filing an O-1 petition in that situation. If an O-1 petition is being filed by a U.S. agent on behalf of multiple employers:
You may access the full USCIS memorandum by clicking here.
The total package of materials to be sent is as follows:
Form I-129 with O/P Supplement;
One of the following:
An advisory opinion;
Evidence that an appropriate consulting entity does not exist;
A request for expeditious handling; or
A request for a waiver of the consulting requirements.
A company letter from the petitioning employer supporting the petition;
Supporting Documentation to establish that the alien qualifies as an alien of extraordinary ability and that the alien is going to be employed in activities using his extraordinary abilities.; and
Filing fee of $325.00
The supporting documentation is to establish that the alien qualifies as an alien of extraordinary ability, and that the alien is going to be employed in activities using his extraordinary abilities. For information on the qualifications for the different O-1 visas, please click here. Proof of the prospective employment is typically done through an employment contract combined with a written discussion of the work to be performed. For proof that the alien is an alien of extraordinary ability, the following types of documents can be submitted in support of an O Petition:
Degree certificates and evaluation reports of the alien;
Publications, presentations, abstracts, invitations to conferences for the alien as well as citations of such publications;
Comments on the alien's work by others in the alien's field;
Requests for reprints of alien's publications;
Evidence of awards or honors received;
Evidence of membership in professional associations;
Documents of alien's participation, either individually or on a panel, as the judge of the work of others in the field;
Critical reviews, advertisements, press releases, publications contracts, or endorsements;
Box office receipts or record, cassette, compact disk, or video sales;
Alien's Curriculum Vitae; and
Recommendation letters from experts in the alien's field explaining his standing as an "alien of extraordinary ability"
The listing above is not exclusive and other forms of evidence may be used.
(Updated 10/10/2012 by AG)
For more information on the O-1 visa, please click one of the following links: