UNCLASSIFIED (U)

9 FAM 402.13

Aliens of Extraordinary Ability O Visas

(CT:VISA-868; 06-24-2019)
(Office of Origin: CA/VO/L/R)

9 FAM 402.13-1 Statutory and Regulatory Authority

9 FAM 402.13-1(A) Immigration and Nationality Act

(CT:VISA-1; 11-18-2015)

INA 101(a)(15)(O) (8 U.S.C. 1101(a)(15)(O)); INA 101(a)(46) (8 U.S.C. 1101(a)(46)); INA 214(a)(2)(A) (8 U.S.C. 1184(a)(2)(A)); INA 214(c) (8 U.S.C. 1184(c).

9 FAM 402.13-1(B) Code of Federal Regulations

(CT:VISA-195; 09-28-2016)

22 CFR 41.55; 8 CFR 214.2.

9 FAM 402.13-2 Overview of o visas

(CT:VISA-433; 08-09-2017)

a. The O classification was created by the Immigration Act of 1990, Public Law 101-649 of November 29, 1990, to provide specifically for the admission of persons with extraordinary ability in the sciences, arts, education, business, and athletics, or extraordinary achievement in motion picture and television production, and their essential support personnel. Many such aliens were previously classified as H-1B nonimmigrants. Since the H-1B classification was not originally designed to address these classes of activities, Congress determined that they should be separated from that classification and treated independently.

b. An O-1 or O-2 alien must be the beneficiary of a petition approved by the Department of Homeland Security (DHS) prior to visa issuance. USCIS regulations provide that the petitioner may be either an employer or agent. While O-1 beneficiaries may not self-petition, a separate legal entity owned by the O-1 beneficiary may be eligible to file a petition on behalf of the O-1 beneficiary.

c. On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to create higher wages and employment rates for workers in the United States, and to protect their economic interests. The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that cases under INA 101(a)(15)(O) must be adjudicated.

9 FAM 402.13-3 CLassification SYMBOLS

(CT:VISA-1; 11-18-2015)

22 CFR 41.12 identifies the following O visa classification symbols for aliens of extraordinary ability in accordance with INA 101(a)(15)(O):

9 FAM 402.13-4 Classification Standards for O Nonimmigrants

9 FAM 402.13-4(A) O-1 Nonimmigrants

(CT:VISA-713; 11-30-2018)

a. In General: The O-1 category applies to any of the following:

(1) An individual who has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim, and who is coming temporarily to the United States to continue work in the area of extraordinary ability; or

(2) An individual who has a demonstrated record of extraordinary achievement in motion picture and/or television productions, and who is coming temporarily to the United States to continue work in the area of extraordinary achievement.

b. Criteria for Position Requiring O-1 Alien: The Department of Homeland Security interprets the statute to encompass any field of endeavor which may include such professions as craftsman, lecturers, the culinary arts, etc. The O-1 visa holder must seek to enter for the purpose of continuing the same type of work but there is no requirement that the position to be filled is one that would require a person of O-1 caliber.

c. Defining Extraordinary Ability and Extraordinary Achievement:

(1) Extraordinary ability in science, education, business or athletics is defined as a level of expertise indicating that the person is one of the small percentage who has arisen to the very top of the field of endeavor.

(2) Extraordinary ability in the arts means distinction. This category requires the petition to establish that a person described as prominent is renowned, leading, or well-known in the field of arts.

(3) Extraordinary achievement in the motion picture and television industry means a very high level of accomplishment as evidenced by a degree of skill and recognition significantly above that ordinarily encountered. The person must be outstanding, notable, or leading.

9 FAM 402.13-4(B) O-2 Nonimmigrants

(CT:VISA-1; 11-18-2015)

The O-2 category applies to an accompanying alien who is coming temporarily to the United States solely to assist in the artistic or athletic performance of an O-1 nonimmigrant. An O-2 alien must be petitioned for in conjunction with the services of the O-1 alien to whom he or she provides support and is not entitled to work separate and apart from the O-1 alien. To qualify for status, O-2 aliens must:

(1) Be an integral part of the actual performances or events and possess critical skills and experience with the O-1 alien that are not of a general nature and cannot be performed by others; or

(2) In the case of a motion picture or television production, have skills and experience with the O-1 alien which are not of a general nature and which are critical, either based on a pre-existing and longstanding working relationship with the O-1 alien or, if in connection with a specific production only, because significant production (including pre- and post-production) will take place both inside and outside the United States and the continuing participation of the alien is essential to the successful completion of the production.

9 FAM 402.13-4(C) O-3 Nonimmigrants

(CT:VISA-1; 11-18-2015)

The O-3 category applies to the spouse and children who are accompanying or following to join an alien classified O-1 or O-2.

9 FAM 402.13-5 DHS Petition Adjudications

9 FAM 402.13-5(A) Department of Homeland Security (DHS) Responsible for Adjudicating O Petitions

(CT:VISA-713; 11-30-2018)

a. Every O-1 and O-2 alien must be the beneficiary of a petition, approved by DHS, prior to visa issuance or, in the case of visa-exempt aliens, admission into the United States. By mandating a preliminary petition, Congress placed responsibility and authority with DHS to determine whether the requirements for O status, which are examined in the petition process, have been met.

b. You should not request the Department to provide status reports on petitions filed with DHS, nor should you contact DHS directly for such reports. As an alternative, you may suggest that the applicant communicate with his or her sponsor. Cases of public relations significance may be submitted to the Department by emailing your post liaison in CA/VO/F.

9 FAM 402.13-5(B) Effect of Filing Immigrant Visa Petition

(CT:VISA-713; 11-30-2018)

DHS has determined that the approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an O-1 or O-3 petition, a request to extend such a petition, or the aliens application for admission, change of status, or extension of stay. The alien may legitimately come to the United States for a temporary period as an O-1 or O-3 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.

9 FAM 402.13-5(C) Consultation Requirement

(CT:VISA-868; 06-24-2019)

Consultations with an appropriate United States peer group (which could include a person or persons with expertise in the field), labor, and/or management organization regarding the nature of the work to be done and the aliens qualifications is mandatory before a petition for an O-1 or O-2 classification can be approved by the Department of Homeland Security. Consultations are normally in the form of a written advisory opinion, which is normally submitted at the time the petitioner files Form I-129 with USCIS. The advisory opinion is usually mandatory, although DHS may obtain or waive it under certain circumstances (for example, if no appropriate union exists). Consultations are advisory in nature and are not binding on DHS.

9 FAM 402.13-5(D) Effect of Labor Disputes

(CT:VISA-713; 11-30-2018)

a. DHS will deny an O petition in the event that the Secretary of Labor certifies that a strike or labor dispute involving a work stoppage is in progress in the occupation at the place the alien will be employed, and the aliens employment would adversely affect the wages and working conditions of U.S. workers. If the petition has already been approved, but the alien has not yet entered the United States or commenced employment, the approval of the petition is automatically suspended and application for admission shall be denied.

b. Should you receive notification from DHS, the Department, or another official source that a previously approved petition has been suspended because of a strike or other labor dispute, you must defer visa issuance and follow whatever instructions are given regarding the disposition of the suspended petition. If you have any questions regarding the validity of a particular petition, you must query the approving DHS office directly.

9 FAM 402.13-6 Petition Procedures

9 FAM 402.13-6(A) Using Form I-129, Petition for a Nonimmigrant Worker, to File Petition

(CT:VISA-713; 11-30-2018)

a. A U.S. or foreign employer uses Form I-129, Petition for a Nonimmigrant Worker, to classify an alien as O-1 or O-2.

b. Form I-129 must be filed only with the DHS Service Center having jurisdiction. The petition may not be filed more than one year before the actual need for the alien's services. Form I-129 is also used to request extensions of petition validity and extensions of stay in O status. (See 9 FAM 402.13-8 below.)

9 FAM 402.13-6(B) Services in More Than One Location

(CT:VISA-713; 11-30-2018)

A petition which requires the alien to work in more than one location must include an itinerary with the dates and locations of the employment and must be filed with the DHS Service Center having jurisdiction.

9 FAM 402.13-6(C) Services for More Than One Employer

(CT:VISA-713; 11-30-2018)

If the beneficiary will work for more than one employer either each employer must file a separate petition with DHS or in some circumstances an agent can, on the employers' behalf, file one petition which encompasses all of the separate employers if so authorized by all of the employers individually. Employment by the O nonimmigrant other than the specific employment listed in the petition is strictly prohibited. If an applicant wishes to add an employer, the new employer must file a petition or amended petition with DHS.

9 FAM 402.13-6(D) Change of Employer

(CT:VISA-713; 11-30-2018)

If an O-1 or O-2 alien in the United States seeks to change employers, the new employer must file a petition with the jurisdictional DHS Service Center. An O-2 alien may change employers only in conjunction with a change of employers by the principal O-1 alien. When an O-1 or O-2 petition is filed by an agent, an amended petition must be filed with evidence relating to the new employer. A request for an extension of stay must also be filed.

9 FAM 402.13-6(E) Amended Petition

(CT:VISA-713; 11-30-2018)

A petitioner shall file an amended petition on Form I-129, Petition for a Nonimmigrant Worker, with fee, with the DHS Service Center where the original petition was filed to reflect any material changes in the terms and conditions of employment or the beneficiarys eligibility as specified in the original approved petition. In the case of a petition filed for an artist or entertainer, a petitioner may add additional performances or engagements during the validity period of the petition without filing an amended petition.

9 FAM 402.13-6(F) Agents as Petitioners

(CT:VISA-713; 11-30-2018)

A U.S. agent may file an O petition in cases involving an alien who is traditionally self-employed or who uses agents to arrange short-term employment on his or her behalf with numerous employers, and in cases where a foreign employer authorizes the agent to act in its behalf. An agent may also file a petition on behalf of a foreign employer.

9 FAM 402.13-6(G) Beneficiaries

(CT:VISA-713; 11-30-2018)

a. Named Beneficiaries: Form I-797, Notice of Action and the record of petition approval in PIMS or PCQS will contain the names of all approved beneficiaries.

b. Multiple Beneficiaries: More than one O-2 accompanying alien may be included on a petition if they are assisting the same O-1 alien for the same event or performances, during the same period of time and in the same location.

c. Substituting Beneficiaries Not Permitted: Since O-1 petitions relate to individual entertainers, substitutions in the case of O-1 beneficiaries will not be permitted. Thus, a new petition will be required in the case of a change of beneficiary. Substitutions of beneficiaries are not permitted on O-2 petition cases.

9 FAM 402.13-6(H) Department of Homeland Security (DHS) Notification to Petitioner of Petition Approval

(CT:VISA-713; 11-30-2018)

DHS uses Form I-797 Notice of Action to notify the petitioner that the O petition filed has been approved or that the extension of stay in O status for the employee has been granted. The approval notice shall include the alien beneficiarys name, classification, and the petitions period of validity. The petitioner may furnish Form I-797 to the employee for the purpose of applying for his or her O visa (although the petition must still be verifiable through PIMS) or to facilitate the employees entry into the United States, either initially or after a temporary absence abroad during the employees stay in O status.

9 FAM 402.13-6(I) Transmission of Approved Petition to Post Via the Kentucky Consular Center (KCC)

(CT:VISA-713; 11-30-2018)

U.S. Citizenship and Immigration Services (USCIS) sends all approved NIV petitions to the Kentucky Consular Center (KCC) for transmittal to post. The KCC scans the petition and supporting documents into the Petition Information Management Service (PIMS), which posts can access through the Consular Consolidated Database (CCD). PIMS allows all information on a petitioner, petition, and/or beneficiary to be linked through a centrally managed CCD service. As a result of this change, the KCC has ceased emailing scanned copies of approved NIV petitions to posts.

9 FAM 402.13-7 Validity of Approved O Petitions

(CT:VISA-713; 11-30-2018)

a. An approved petition for an alien classified O-1 will be valid for a period of time determined by DHS to be necessary to accomplish the event or activity, not to exceed three years.

b. An approved petition for an alien classified O-2 will be valid for a period of time determined to be necessary for the O-1 artist or athlete to accomplish the event or activity, not to exceed three years.

c. You are authorized to accept and issue visas to qualified applicants up to 90 days in advance of applicants beginning of status as noted on the Form I-797. You must inform applicants verbally and in writing that they can only use the visa to apply for entry to the United States starting ten days prior to the beginning of the approved status period noted on their Form I-797. (See 9 FAM 402.13-8 below.) In addition, such visas must be annotated:

Not valid until (ten days prior to the petition validity date).

d. Petition Extension: The petitioner must file a request to extend the validity of an O petition on Form I-129, Petition for a Nonimmigrant Worker, in order to continue or complete the same activity or event specified in the original petition. Supporting documents are not required unless requested by DHS. A petition extension may be filed only if the validity of the original petition has not expired.

9 FAM 402.13-8 Length of Stay

(CT:VISA-713; 11-30-2018)

a. An O-1 or O-2 nonimmigrant may be admitted to the United States for the validity period of the petition, plus a period of up to ten days before the validity period of the petition begins and ten days after it ends. The alien may not work except during the validity period of the petition. There is not an overall time limit as to how long one may be present in the United States in total in an O-1 status, such as there is for the H1B and L1 visa classifications.

b. Extension of Stay: The petitioner must request the extension of an aliens stay in the United States on the same Form I-129, Petition for a Nonimmigrant Worker, used to file for the extension of the aliens petition. The effective dates of the petition extension and of the beneficiarys extension of stay shall be the same. The beneficiary must be physically present in the United States at the time the extension of stay petition is filed. If the alien is required to leave the United States for business or personal reasons while the extension requests are pending, the petitioner may ask DHS to cable notification of the petition extension to the consular office abroad where the alien will apply for a visa.

c. Extension Periods: An extension of stay may be authorized in increments of up to one year for an O-1 or O-2 nonimmigrant to continue or complete the same event or activity for which he or she was admitted, plus an additional 10 days.

9 FAM 402.13-9 IssuING O Visas

9 FAM 402.13-9(A) Effect of an Approved Petition on Visa Adjudication

(CT:VISA-713; 11-30-2018)

a. An approved petition is considered prima facie evidence that the requirements for visa classification, which are examined by a USCIS adjudicator during the petition process, have been met.  However, the approval of a petition by USCIS does not relieve the alien of the burden of establishing visa eligibility. While the majority of petitions are valid, you should confirm that the facts in the petition are true during the visa interview. Remember that DOL and USCIS interact solely with the petitioner; the interview is the first point during the petition-based visa process where a USG representative has the opportunity to interact with the beneficiary of the petition. Additionally, consular officers overseas benefit from cultural and local knowledge that adjudicators at USCIS do not possess, making it easier to spot exaggerations or misrepresentation in qualifications.

b. You must suspend action on an aliens application and submit a report to the approving DHS office if you know or have reason to believe that an alien applying for a visa under INA 101(a)(15)(O) is not entitled to the classification as approved. For more information on refusing O visas see 9 FAM 402.13-10.

9 FAM 402.13-9(B) Verifying Petition Approval

(CT:VISA-713; 11-30-2018)

a. PIMS or the Person Centric Query Service (PCQS) are the sources of confirmation for you that a petition for a visa has been approved. Posts may use approved Form I-129 and Form I-797 presented at post as sufficient proof to schedule an appointment, or may schedule an appointment based on the applicants confirmation that the petition has been approved, but only PIMS or PCQS is sufficient evidence for visa adjudication.

b. The PIMS Petition Report is listed in the CCD under a sub-category of the NIV menu called NIV Petitions. The PIMS Petition Report contains a record of all petitioners recorded by the KCC as having approved petitions since 2004. In addition, the KCC FPU has provided informational memos on a large percentage of these petitioners. Each new, approved petition is linked to a base petitioner record, allowing tracking of NIV petitioner and petition information.

c. If PIMS does not contain the petition approval, before sending an email to KCC, post has the option to look for petition approval in PCQS in the CCD under the Cross Applications tab. In PCQS, under Search Criteria, select Receipt Number; then enter the number; e.g., EAC1234567890. First, search CISCOR to find the petition, but if not found in CISCOR, you should also check CLAIMS 3. If post finds a petition approval in PCQS that was not in PIMS, the post should send an email to PIMS@state.gov as follows: "Petition with Receipt Number EAC1234567890 was found in PCQS but not in PIMS". You may not authorize a petition-based NIV without verification of petition approval either through PIMS or PCQS.

d. If you are unable to immediately locate information on a specific petition either through PIMS or PCQS, you must send an email to PIMS@state.gov. KCCs FPU will research approval of the petition and, if able to confirm its approval, will make the details available through the CCD within 2 working days. You may submit your request to KCC only within five (5) working days of the scheduled interview date and you must have checked PIMS before submitting a request to KCC. KCC will check the USCIS CLAIMS database, and will upload the CLAIMS report into PIMS so that you can proceed with the scheduled interview. KCC will not process PIMS requests submitted by post prior to the five day window.

9 FAM 402.13-9(C) Validity of O Visas

(CT:VISA-310; 03-21-2017)

The validity of an O visa may not exceed the period of validity of a petition approved to accord O status. If the period of reciprocity shown in the reciprocity schedules is less than the validity period of the approved petition or extension of stay, the period of lesser validity prevails.

9 FAM 402.13-9(D) Issuing a Single O Visa Based on More Than One Petition

(CT:VISA-713; 11-30-2018)

If the alien is the beneficiary of two or more O petitions and does not plan to depart from the United States between engagements, you may issue a single O visa valid until the expiration date of the last expiring petition, reciprocity permitting. The required annotations (see 9 FAM 402.13-9(F)) from all petitions must be placed on the visa.

9 FAM 402.13-9(E) Limiting O Visas

(CT:VISA-713; 11-30-2018)

You may restrict visa validity in some cases to less than the period of validity of the approved petition or authorized period of stay (for example, on the basis of reciprocity or the terms of an order waiving a ground of ineligibility). In any such case, in addition to the annotations described in 9 FAM 402.13-9(F), insert the following:

PETITION VALID TO (Date)".

9 FAM 402.13-9(F) Annotating O Visas

(CT:VISA-713; 11-30-2018)

You must annotate the number of the aliens approved petition (or the number of the principal aliens petition in the case of O-3 dependents) on the visa, followed by the name and location of the aliens employer. Follow the standard operating instructions for annotating visas; for more details see 9 FAM 403.9-5(E).

9 FAM 402.13-9(G) Reissuing O Visas

(CT:VISA-713; 11-30-2018)

When an O visa is limited by reciprocity to a period of validity less than the validity of the petition or authorized period of stay, you may use the same, still-valid petition in order to issue the applicant a new visa any number of times within the allowable period. If a fee is prescribed by the reciprocity schedules, you must collect the fee for each reissuance of the O visa.

9 FAM 402.13-10 REFUSING O VISAS

(CT:VISA-713; 11-30-2018)

a. Applying 214(b): An O-1 applicant is presumed to be an immigrant until he or she establishes to your satisfaction that he or she is entitled to O-1 nonimmigrant status, and the standards for applying 214(b) described in 9 FAM 302.1-2(B)(3) apply to O-1 applicants. Under 8 CFR 214.2(o)(13), a "temporary" intent to remain in the United States is a requirement for O-1 classification. However, an applicant for an O-1 visa does not have to have a residence abroad which he or she does not intend to abandon. Further, as explained in 9 FAM 402.13-5(B) above, dual intent is permissible for O-1 visa holders. These same standards apply to O-3 aliens accompanying the O-1 principal applicant.

b. Unlike the O-1 nonimmigrant, the O-2 visa applicant must satisfy you that he or she has a residence abroad and no intent to abandon that residence. This same standard applies to O-3 aliens accompanying the O-2 principal applicant.

c. Referring Approved O Petition to USCIS for Reconsideration: For guidance on sending a petition to USCIS for reconsidering, please refer to 9 FAM 601.13.

9 FAM 402.13-11 Spouse and Children of O-1 or O-2 Aliens

(CT:VISA-310; 03-21-2017)

a. The spouse and children of an O-1 or O-2 alien, who are accompanying or following to join in the United States, are entitled to O-3 classification and are subject to the same visa validity, period of admission, and limitations as the O-1 or O-2 principal alien. For a general discussion of the classification of the spouse and children of a nonimmigrant, see 9 FAM 402.1-4 and 9 FAM 402.1-5.

b. Employment Prohibited: Aliens in O-3 status are generally not authorized to accept employment. The spouse and children of an O principal alien may not accept employment unless they qualify independently for a classification in which employment is, or can be, authorized. You must take this into account in evaluating whether family members have furnished adequate evidence of their support while in the United States. O-3 aliens are permitted to study during their stay in the United States.

c. Verification that Principal Alien is Maintaining Status: When an alien applies for an O-3 visa to follow to join a principal alien already in the United States, you must be satisfied that the principal alien is maintaining O status before issuing the visa. If there are no readily available means of verification, you may suggest to the applicant that the principal alien in the United States submit a copy of his or her Form I-94, Arrival and Departure Record, (if the principal alien received a paper I-94, copies of both sides must be submitted) and a copy of his or her current visa for presentation to you. You may also wish to check PIMS and ADIS for arrival and departure information, if available.

9 FAM 402.13-12 Return Transportation When Employment Involuntarily Terminated

(CT:VISA-1; 11-18-2015)

If an O nonimmigrants employment terminates for reasons other than voluntary resignation, the employer and petitioner who sought the aliens O status are responsible for providing the reasonable cost of the aliens transportation to his or her last place of residence prior to entry into the United States.

 

 

UNCLASSIFIED (U)