Alternatives to the H-1B visa, pt. 1: O-1 "Extraordinary ability"

as a Nobel Prize, much more often extraordinary ability is proven with documentation of at least three (3) of the following eight (8) criteria:

  1. receipt of nationally or internationally recognized awards;
  2. membership in an organization that requires outstanding achievement;
  3. published material about the applicant in professional or trade publications;
  4. judgment of the work of others;
  5. original scientific or scholarly work of major significance;
  6. authorship of scholarly work;
  7. employment in a critical or essential capacity at an organization of distinguished reputation; and,
  8. commanding or having commanded a high salary.

Moreover, should these criteria not readily apply to the beneficiary, the employer/petitioner may submit any “comparable evidence” in support of the petition.

Any potential O-1 case should begin with a careful review of the beneficiary’s resume or curriculum vitae. Frequently, evidence of “written by,” “written about,” “judgment of others,” “critical or essential capacity,” “original work, and “organizational membership” are discovered after examining the beneficiary’s experiential and educational background and through direct communication between the beneficiary and the immigration attorney. As for “high salary,” the petitioner can simply offer remuneration at a level higher than “prevailing wage” for the position.

Some additional considerations regarding O-1 classification warrant mention.

First, O-1 status may be granted for a period of up to three (3) years. The beneficiary may be admitted ten (10) days before and remain ten (10) days after the validity period of O-1 status but may not work during this time. Extensions of O-1 status may be granted in one-year increments. Theoretically, no documentation is required for an extension — only a statement explaining why the extension is necessary. Unlike the H-1B visa, there is no limit on the amount of time one can remain in the U.S. in O-1 status.

Additionally, though the O-1 beneficiary must be entering the United States for the purpose of continuing to work in the beneficiary’s field of endeavor, there is no requirement that the position offered requires a person of extraordinary ability. Only evidence that the beneficiary is a person of extraordinary ability is necessary — not that the position inherently requires a person of extraordinary ability. The emphasis is on the beneficiary’s past not the proffered employment.

Moreover, unlike some other nonimmigrant visa categories, O-1 classification permits “dual intent.” Dual intent is, in essence, a legal fiction. All nonimmigrants (that is, those whose visa status allows them to remain in the United States only temporarily) must demonstrate an intention to depart the U.S. upon the expiration of their nonimmigrant