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The O-1B visa opens doors for artists and entertainment professionals with extraordinary abilities to work in the United States, offering a unique opportunity to elevate their careers on an international stage.
This guide delves into the essentials of the O-1B visa, including eligibility criteria, application process, and key considerations for both the talented individuals seeking entry and the organizations eager to welcome their skills.
Whether you’re a performer, visual artist, or behind-the-scenes talent, understanding the O-1B visa can be your first step toward turning your American dream into reality.
What is the O-1B Visa?
The O-1B visa allows U.S. employers to temporarily hire nonimmigrant foreign workers who have extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry.
What are the Eligibility Requirements for the O-1B Visa?
To qualify for this visa, an applicant must have “distinction” in their field of arts. Generally, this means the applicant possesses a record of high-level achievement in the field of arts, including in television, cinema, or other general forms of artistry.
Achievement in Arts Generally
For an O-1B applicant to show they hold distinction in their field of arts, they must prove that they possess a degree of skill and recognition substantially above that which is ordinarily encountered such that the applicant is prominent, renowned, leading, or well-known in their field of arts.
Motion Pictures or Television
Applicants in the motion picture or television industry must demonstrate a degree of skill and recognition significantly above that ordinarily encountered so that an individual is recognized as outstanding, notable, or leading in the motion picture and/or television field.
What is the process for obtaining an O-1B visa?
The process for obtaining this 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 obtaining this 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 this visa. The employer or agent must not file the form I-129 more than one year before 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 before 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 in their field of art;
- A written advisory opinion from a peer group or a person with expertise in the beneficiary’s field. O-1B applicants in motion picture or television must provide a written advisory opinion from an appropriate labor union and a management organization with expertise in the applicant’s area of ability.
- This requirement may be waived for O-1B applicants who can demonstrate that they are seeking readmission to perform similar services within two years of a prior application. It may also 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
- Notice of the decision.
Step Three: Employee Files Online Form DS-160
The 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 an 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-1B 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-1B 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 about why the applicant is seeking this visa, including about the applicant’s employment with their employer and the applicant’s extraordinary ability. The 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 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 field of artistry.
FAQ’s
Can O-1B visa holders study while in the United States?
Yes. visa holders may study full-time or part-time while in the United States so long as the original conditions of the visa are adhered to. If the educational program lasts longer than the period of validity for the 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-1B visa.
Can O-1B visa holders change employers?
Generally, yes. 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.
Can O-1B visa holders apply for a green card?
Yes. Generally, there is no requirement that the visa applicant or visa holder prove foreign residency in order to qualify for this visa. The visa will not be denied to applicants who also apply for permanent residency in the United States.
For how long is the O-1B visa valid?
The O-1B 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.
The visa holders may be in the United States 10 days prior to the beginning of their validity period, and 10 days after. However, the visa holders may only work during the validity period.
The visa holders who need to extend their stay in order to continue or complete the same event or activity for which the 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-1B 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-1B 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.
Conclusion
The O-1B visa is designed for foreign nationals with extraordinary abilities in the arts or notable achievements in the motion picture or television industries, allowing them to work temporarily in the United States. To qualify, applicants must demonstrate a high level of distinction and recognition in their field, significantly above the norm. The process involves the U.S. employer filing Form I-129, followed by the applicant completing Form DS-160 and attending an interview. The visa is valid for up to three years and can be extended based on the duration of the employment event or activity.
For expert legal guidance on your O-1B visa application, contact Khandelwal Law.
Disclaimer:
If any pricing information provided here is for reference only and may fluctuate due to changes in government policy, economic conditions, or other factors. For the most accurate and current USCIS fees, please refer to the relevant government websites or official resources. The attorney fees mentioned are approximate and will depend on the facts and circumstances of each individual case. Fees and costs are subject to change and should not be considered final.
