O-1A Visa

What is the O-1A Visa?

The O-1A visa allows U.S. employers to temporarily hire nonimmigrant foreign workers who have extraordinary ability in the sciences, education, business, or athletics.

What are the Eligibility Requirements for the O-1A Visa?

In order to qualify for an O-1A visa, an applicant must demonstrate a level of expertise and extraordinary ability in the fields of science, education, business, or athletics so that the individual is one of the small percentage who sit on the very top of the field. This can be shown through sustained national or international acclaim. O-1A applicants must also intend to come to the United States temporarily in order to qualify for the visa.

What is the process for obtaining an O-1A visa?

The process for obtaining an O-1A visa is driven by the employer of the potential employee who possesses extraordinary ability.

Step One: Employer Files Form I-129, Petition for Nonimmigrant Worker

The first step to obtain an O-1A visa requires the U.S. employer, U.S. agent, or foreign employer to file Form I-129, Petition for Nonimmigrant Worker with the United States Citizen and Immigration Services (USCIS) on the potential employee’s behalf. Commonly, a U.S. agent who is inside the U.S. will file Form I-129 on behalf of the employer.

When submitting Form I-129, the employer must include the required evidence showing the potential employee’s qualifications for the O-1A visa. The employer or agent must not file the form I-129 more than one year prior to the date the employer needs the potential employee’s services. The USCIS recommends an employer or agent file the form I-129 at least 45 days prior to the date of employment.

Documentation Filed with the Form I-129

When submitting Form I-129, the employer, or an agent on the employer’s behalf, must provide the following documentation to the USCIS:

  • Evidence demonstrating the potential employee’s extraordinary ability.
  • A written advisory opinion from a peer group or a person with expertise in the beneficiary’s field.
    • This requirement may be waived if it can be demonstrated that no applicable peer group exists to provide evidence, in which case other evidence provided by the employer will be considered instead.
  • The contract between the employer and potential employee or a summary of the oral agreement under which the employee would be employed.
  • An explanation of the nature of the events or activities of employment, the start and end dates of the events or activities, and a copy of any itinerary for the events or activities.

Step Two: USCIS Processes Form I-129

Once the USCIS receives Form I-129, the employer or agent will receive the following in return:

  • A receipt notice confirming the petition was received;
  • A notice to appear for an interview, if required;
  • A biometric services notice, if applicable; and
  • A notice of decision.

Step Three: Employee Files Online Form DS-160

The O-1A visa applicant who will be working for their employer in the United States must complete Online Nonimmigrant Visa Application, Form DS-160. This involves uploading a photo of the applicant that conforms to the U.S. Department of State photograph requirements. Once Form DS-160 is submitted, the employee must download and print the confirmation page showing Form DS-160 was completed and the filing fee paid. The confirmation page will need to be brought to the visa interview at a U.S. Consulate or Embassy.

Step Four: Schedule Interview and Biometrics Appointment

When Form I-129 is approved, the USCIS will send Form I-797, Notice of Action. This may include with it a notice to appear for an interview and a biometric services appointment. The O-1A applicant is responsible for scheduling and appearing for his or her interview and biometrics appointment.

Step Five: Attend Interview and Biometrics Appointment

If requested, the O-1A applicant (employee) must attend an interview at a U.S. embassy or consulate, where an official will evaluate the applicant’s documentation and ask questions pertaining to why the applicant is seeking the O-1A visa, including about the applicant’s employment with their employer and the applicant’s extraordinary ability. The O-1A visa applicant may be able to schedule the biometrics appointment to take place at the U.S. Embassy or Consulate when the visa interview is scheduled.

Before attending the interview, the applicant should compile certain documentation to bring with them to the interview.

The documents listed below must be brought with the O-1A visa applicant to the interview:

  • Confirmation page for Form DS-160;
  • Passport valid for travel to the United States that will remain valid for at least six months beyond the visa holder’s period of stay in the United States;
  • Application fee payment receipt;
  • Contract or letter of employment that confirms upcoming employment
  • Documentation proving the applicant meets the extraordinary ability requirements for their profession.

Can O-1A visa holders study while in the United States?

Yes. O-1A visa holders may study full-time or part-time while in the United States so long as the original conditions of the O-1A visa are adhered to. If the educational program lasts longer than the period of validity for the O-1A visa, the visa holder should apply for a student visa that would permit them to remain in the United States for the purpose of completing their education. Continuing education is not a valid basis for extending the O-1A visa.

Can O-1A visa holders change employers?

O-1A visa holders who will see any material change in the terms and conditions of their employment or eligibility must have their employer or their agent file an amended form I-129 with the service center where the original petition was filed.

Professional athletes using the O-1A visa who are traded to a new team must have their new employer file a new form I-129 within 30 days of the trade. Filing the new Form I-129 extends the athlete’s employment authorization while his or her petition is processed. The athlete will lose his or her employment authorization if the petition is not filed within 30 days of the trade or if the new form I-129 is denied.

Can O-1A visa holders apply for a green card?

Yes. Generally, there is no requirement that a O-1A visa applicant or visa holder prove foreign residency in order to qualify for the O-1A visa. An O-1A visa will not be denied to applicants who also apply for permanent residency in the United States.

For how long is the O-1A visa valid?

The O-1A visa is valid for up to three years. Extensions are available for up to one year; however, the exact length of time will be determined based on how long it will take an applicant to accomplish the event or activity for which they seek U.S. entry.

O-1A visa holders may be in the United States 10 days prior to the beginning of their validity period, and 10 days after. However, O-1A visa holders may only work during the validity period.

O-1A visa holders who need to extend their stay in order to continue or complete the same event or activity for which the O-1A visa was approved, the employer or agent must file the following documents with USCIS:

  • Form I-129, Petition for a Nonimmigrant Worker;
  • A copy of your Form I-94, Arrival/Departure Record; and
  • A statement explaining the reasons for the extension.

How much does it cost to get an O-1A visa?

The application fee when filing Form I-129 is $460, which is commonly paid by the employer. The cost to file Form DS-160 is $160. An applicant can pay $2500 for premium processing, which expedites the application process.

If an O-1A visa holder’s employer terminates his or her employment for any reason other than the visa holder’s voluntary resignation, the employer must pay the reasonable cost of return transportation to the visa holder’s last place of residence before entering the United States.

Sweta Khandelwal

Sweta completed her Masters in Law from the University of California, Los Angeles and her JD from the Faculty of Law, Delhi University in India and has been practicing law for 15+ years getting visas, green cards, and citizenship for 1000+ clients, 100+ companies across 50+ nationalities.

Sweta has been recognized as a ” Super Lawyer, Rising Star,” and as amongst the ” Top 40 under 40″ immigration attorneys in California (American Society of Legal Advocates). She is also the recipient of the Advocacy Award by the American Immigration Lawyers Association.

Sweta is also a chartered accountant — the equivalent of a CPA. This makes her uniquely positioned to understand the immigration needs of her business clients in the broader context of their corporate objectives.

Sweta is actively involved with immigration issues and immigrant communities in various capacities. She has assumed key roles at the American Immigration Lawyers Association (AILA), both at the local and national level. She has been a past chair at the Santa Clara Valley Chapter at AILA and has also been involved in various practice area committees at AILA National. Sweta has addressed multiple conferences/forums in the United States and worldwide on immigration and business issues.