Wednesday, February 19, 2020

What's Up, Attorney?

O-1 Visa as an Alternative to H-1B Visa

By Atty. Reuben S. Seguritan

To impeach President Donald Trump or not?

There are different kinds of visas to bring a foreign national to the United States for a definite period of time. One of those visas is the O-1 nonimmigrant work visa for foreign nationals with extraordinary abilities. The foreign national must be sponsored by a US employer or agent. Foreign nationals cannot sponsor themselves for the O-1 visa. The advantage of the O-1 visa over other work visas such as the H-1B visa is there is no cap or yearly limit.

The O-1 nonimmigrant visa is for a foreign national who possess extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.

“Extraordinary” ability or achievement is a high standard that must be met in order to be approved for the O-1 visa. Evidence must be presented to support at least 3 of the 8 categories enumerated by the United States Citizenship and Immigration Services (USCIS). These are:

  1. Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
  2. Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field;
  3. Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought;
  4. Original scientific, scholarly, or business-related contributions of major significance in the field;
  5. Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought;
  6. A high salary or other remuneration for services as evidenced by contracts or other reliable evidence;
  7. Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought; and
  8. Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.

The 8 categories stated by the USCIS is not exclusive. Other comparable evidence may be presented to meet the “extraordinary” ability or achievement requirement.

There are different visas in the O-1 visa classification. The O-1A visas are for foreign nationals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry). The O-1B visas are for foreign nationals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry. The O-2 visas are for foreign nationals who will accompany an O-1, artist or athlete, to assist in a specific event or performance. For an O-1A, the O-2’s assistance must be an “integral part” of the O-1A’s activity. For an O-1B, the O-2’s assistance must be “essential” to the completion of the O-1B’s production. The O-2 foreign national has critical skills and experience with the O-1 that cannot be readily performed by a US worker and which are essential to the successful performance of the O-1 foreign national. The O-3 visas are for foreign nationals who are the spouse or children of O-1’s and O-2’s

O-1 visas are considered as “dual intent visas.” The O-1 foreign national is not required to show foreign residence to prove that he has an intent to return to that country. This means that the granting or extension of the O-1 visa cannot be denied even though a labor certification or a petition leading to permanent residence in the US is filed on behalf of the O-1 foreign national. However, the O-2 visa accompanying foreign national must be going to the US temporarily and must show that he has residence abroad. Hence, the O-2 visa foreign national must show that he will only be temporarily in the US to assist the O-1 visa foreign national.

REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at (212) 695 5281 or log on to his website at www.seguritan.com