O-2 Visa

 

What is the O-2 Visa?

The O-2 visa allows an individual to temporarily come to the United States by accompanying an O-1A or O-1B visa holder for the purpose of assisting the O-1 visa holder in a specific event or performance.

What are the Eligibility Requirements for the O-2 Visa?

To qualify for an O-2 visa, an individual must be providing assistance to an O-1A or O-1B visa holder that is “integral” to the primary visa holder’s performance. An O-2 visa holder must also have critical skills and experience with the O-1A or O-1B visa holder that cannot be readily performed by a U.S. worker.

Assisting O-1B Visa Holders in Motion Pictures or Television

An individual seeking an O-2 visa to provide assistance to a worker in the motion picture or television industry must have skills or experience with the O-1B visa holder that are not of a general nature and are critical to the O-1B visa holder’s work.

Assistance is critical when there is either a pre-existing long standing working relationship between the O-1B visa holder and his or her assistant, or the assistant’s continuing participation is essential to the successful completion of the production because a significant portion of the pre- and post-production work will take place both inside and outside the United States.

What is the process for obtaining an O-2 visa?

The process for obtaining an O-2 visa is driven by the employer of the potential O-1 visa employee who possesses extraordinary ability and who the O-2 visa applicant will be assisting.

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

The first step to obtain an O-2 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 O-2 visa applicant’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-2 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:

  • A written Consultation (advisory opinion) from an appropriate labor organization for O-1 visa applicants with extraordinary ability in athletics or the arts;
  • A written Consultation (advisory opinion) from an appropriate labor or management organization for O-1 visa applicants with extraordinary achievement in motion pictures or television;
  • Evidence that establishes the O-2 visa applicant’s current essentiality, critical skills, and experience with the O-1 visa applicant;
  • Evidence that establishes the O-2 visa applicants substantial experience performing critical skills and essential support services for the O-1 visa applicant;
  • Evidence that establishes a significant amount of the production for a specific motion picture or television show, including pre- and post-production, has taken place outside the United States and will take place inside the United States, and that the O-2 visa applicant’s continued participation is essential to the successful completion of production.

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-2 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-2 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-2 applicant (assistant to O-1 applicant) 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-2 visa, including about the applicant’s current essentiality, critical skills, and experience with the O-1 visa applicant as well as the applicant’s substantial experience performing critical skills and essential support services for the O-1 visa applicant. The O-2 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-2 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 O-1 applicant meets the extraordinary ability requirements for their field of artistry or athletics;
  • The written Consultation (advisory opinion) from an appropriate labor organization for O-1 visa applicants with extraordinary ability in athletics or the arts or from an appropriate labor or management organization for O-1 visa applicants with extraordinary achievement in motion pictures or television;
  • Evidence that establishes the O-2 visa applicant’s current essentiality, critical skills, and experience with the O-1 visa applicant;
  • Documentation proving the O-2 applicant’s current essentiality, critical skills, and experience with the O-1 visa applicant;
  • Documentation proving the O-2 applicant’s substantial experience performing critical skills and essential support services for the O-1 visa applicant

Can O-2 visa holders study while in the United States?

Yes. O-2 visa holders may study full-time or part-time while in the United States so long as the original conditions of the O-2 visa are adhered to. If the educational program lasts longer than the period of validity for the O-2 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-2 visa.

Can O-2 visa holders change employers?

Generally, yes. O-2 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. The new employment must satisfy the same essentiality requirements for the O-2 visa applicant.

Can O-2 visa holders apply for a green card?

Generally, no. Unlike O-1 visa holders, O-2 visa holders are not permitted to have “dual intent” when coming to the United States as a temporary nonimmigrant. Dual intent means that a visa holder must show that they are maintaining residency in their home country throughout the duration of the O-2 visa, and have no intent to abandon their residence abroad.

For how long is the O-2 visa valid?

The O-2 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. An O-2 visa holder is generally permitted to remain in the United States and receive extensions for the same length of time as the O-1 visa holder they are assisting, so long as the O-2 visa holder’s assistance remains essential to the O-1 visa holder.

O-2 visa holders may be in the United States 10 days prior to the beginning of their validity period, and 10 days after. However, O-2 visa holders may only work during the validity period.

O-2 visa holders who need to extend their stay in order to continue or complete the same event or activity for which the O-2 visa was approved must have their 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-2 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-2 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.