Extraordinary Ability Individuals (O)

The purpose of the O category is to permit the temporary admission and employment of individuals with extraordinary ability in the sciences, arts, education, business, or athletics in the US for the purpose of continuing work in the area of their abilities on behalf of a petitioning employer. The category bears much similarity to the "distinguished merit and ability" element that once applied to the H category. Unlike the H group, however, there is no preset limit to the annual number of O admissions. For persons who can meets its rather stringent requirements, the O category holds many advantages as an H alternative.

Demonstrating Extraordinary Ability

USCIS rules establish somewhat different evidentiary proofs of "extraordinariness" for the science, education, business, and athletics as compared with the arts. In all cases, however, petitioning employers must demonstrate that the individual has achieved a record of performance, achievement, and recognition in the highest tiers of their fields, and that there is a substantial body of material that demonstrates agreement by their peers as to their achievements and capabilities.

With respect to individuals in scientific, education, business, or athletics, petitioners must demonstrate a level of expertise indicating that person is one of a small percentage or persons who have risen to the very top of their field of endeavor. If the individual has received one of the world's preeminent international prizes, the law will, in effect, deem the selection committee's work in awarding the prize to have satisfied any screening requirement that the USCIS would have conducted. The international award bar is a high one, though, with the Nobel as a benchmark. Other awards granted by highly respected foundations which couple high levels of scrutiny of a body of work with a substantial economic or intangible award would pass muster as well, such as a Pulitzer prize in journalism or the international equivalent to a MacArthur Foundation grant.

Of course, the vast majority of individuals who have risen to the tops of their fields have not received a Nobel prize or its equivalent, nor should it be presumed that they need to in order for their accomplishments to be recognized for purposes of the immigration laws. The vast majority of extraordinary ability petitioners use the statute's alternate means of proving providing proofs of distinguished merit by providing three or more of the following types of evidence:

News clippings from professional, trade, or mainstream media relating to the individual's work;

Evidence of the individual's participation as a judge of the work of others in the same field;

Evidence of individual's original scientific, scholarly, or business communications "of major significance";

Evidence of authorship of scholarly articles in professional journals or other major media;

Evidence the individual has been employed in a critical or essential capacity for organizations and establishments with distinguished reputations, and, if necessary, evidence supporting the establishment's reputation;

Evidence the individual has commanded a high salary, such as tax returns or W-2 forms from previous years; or

Other germane evidence to the extent these criteria do not apply to the individual's field of expertise.

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Extraordinary Ability - The Arts

An individual asserting extraordinary ability in the fine arts, visual arts, culinary arts, performing arts and related fields, they must establish a high degree of skill and recognition substantially above that ordinarily encountered and that the person is renowned, leading, or well known in the arts field. This is also a two option proof, either through demonstration that the individual has received a major international award (e.g., Oscar, Emmy, Grammy, in certain performing arts, for example) or through establishment of a proof through documentation. This would include three or more of the following types of evidence:

Evidence that the individual has or will perform in leading productions or events with a distinguished reputation as evidenced by critical reviews, ads, endorsements;

Evidence that the individual has achieved national or international recognition for achievements evidenced by reviews, articles, etc.;

Evidence that the individual will perform a leading role in a performance for an organization or establishment with a distinguished reputation;

Evidence that the alien has established a record of major commercial or critical acclaim based on titles released, box office receipts, critical reviews, and the like;

Evidence that the individual has received significant recognition from organizations, critics, and government entities in the field in which alien is engaged;

Evidence that the individual has or will command a high salary or or other compensation;

If prior criteria do not apply to the individual's field of activity, other probative evidence of extraordinary ability.

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Supporting Employees

A principal extraordinary ability individual in the arts or athletics may be accompanied by individuals who are an integral part of the actual performance of the principal in the specific performing or sports events. In this function they must have critical skills and experience specific to activities of the principal and specifically commit to retaining a primary residence outside of the United States. (This is not a requirement of the principal himself). Additionally, the employee must demonstrate substantial experience performing the critical skills and essential services for the principal. If the employee is involved in motion picture production, he must demonstrate his involvement in significant pre- or post-production work on the film outside of the United States.

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Consultation

In addition to the submission of proofs, extraordinary individual principals and their employees are subject to a consultation requirement, usually in the form of a written advisory opinion, with a US peer group, labor, or management organization regarding the nature of the work to be done and the individual's qualifications to perform them. In all cases, USCIS will refer the petition to the national headquarters of the labor organization of the principal individual's field. If the organization poses no objection within 15 days, USCIS will deem they have no objection. If the labor organization responds negatively to the consultation, it must support its reasoning with a written determination, which USCIS will consider in the adjudication process.

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Change of Employers/Termination

If the extraordinary ability individual changes employers while in the US, the new employer is deemed to be requesting an extension of stay and must file anew. The principal's employees may change jobs only in conjunction with the principal's change. If multiple employers are involved, such as where different organizations sponsor events in different cities, each employer must petition individually. If the principal is self-employed, he may engage a US agent who petitions on their behalf. If the US employer terminates the principal or his employees, he must provide transportation abroad to the parties' most recent place of residence.

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Dependents

The spouse and minor children of the principal individual and of his employees may accompany him or follow to join.

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Term

The principal will be granted a stay of sufficient duration to complete the event(s) for which he is coming to the US, with employees and dependents permitted to stay the same length of time. Spouses of principals or their employees are not permitted employment while in the US in this dependent status. Extensions of stay are permitted in one year increments to continue to completion the activity for which admission was originally granted.

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Dual Intent

Extraordinary ability individuals may seek and obtain labor certifications and pursue permanent resident status while in the US as a nonimmigrant, which, if granted, will extend to his dependents. Dual intent is not available to the individual's employees.

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