The O-1 Solution: An Advanced Analysis

By Summer Hackley – Published February 2006, 27th Annual Immigration Law Update, The Florida Bar Continuing Education Committee and the S. Florida Chapter of the American Immigration Law Association, Advanced Course Materials.

The O-1 visa could be called the “hidden visa,” as it seems that attorneys often contemplate every other visa option before considering a person’s eligibility under this category. Admittedly, the first glimpse of the eligibility criteria is daunting; however, a narrowly defined occupational classification, detailed testimonial letters, and strategically selected evidence will clad many an accomplished individual with O-1 status.

As you well know, the O-1 visa category abides by three different standards, the most exacting one being reserved for individuals displaying extraordinary ability in the fields of business, science, education, and athletics. O-1 petitions filed under this category must establish O-1 beneficiaries as residing at the very top of their field or in other words belonging to a distinguished and narrow elite of expert professionals. Do not be intimidated by the standard, and do not overlook the broad range of occupational titles that should be considered. In the business area, the occupations may range from entrepreneurs to fundraisers to hoteliers. In the field of athletics, qualifying O-1 candidates range from ballplayers and their coaches to tennis pros and their coaches to motocross performers and other stunt artists. As you might suspect, physicians and researchers encompass most of the science category, although we have also had success in classifying architects and engineers in this category as well. In reality, qualifying occupations in each field are virtually unlimited.

The middle standard pertains to extraordinary achievement in the motion picture or television industries. The O-1 beneficiary has to evidence a level of skill and recognition significantly exceeding what is considered the norm in these fields. This standard allows O-1 candidacy for many, if not most, performers and audio visual production specialists of nationally viewed programs, including soap operas, talk shows, news shows, sitcoms, documentaries, and reality television series. In other words, your O-1 candidate does not necessarily have to be the leading performer in a major motion picture or television show to qualify, allowing performers and crew of smaller productions to qualify for O-1 status.

The lowest standard is reserved for the arts category, in which the O-1 petitioner is asked to evidence the O-1 beneficiary’s level of distinction, which sets the individual apart from the common brood yet does not require her to belong to an elite pool of professionals. The arts category spans the entire creative spectrum from professions in artistic painting, photography, culinary arts, in short nearly any field pertaining to the liberal arts.

The first piece of advice offered by this author is simple: Do not underestimate the person sitting in front of you. Evaluate each and every prospective client (and for that matter existing clients too) for eligibility by examining their resume and questioning them about any accomplishment that touches upon any one of the eight regulatory criteria. Criteria, such as awards and publications, are easy to spot. Others, such as original contributions or membership in organizations require more in depth questioning. Knowing the ultimate value in spending consultation time wisely, this author has found that the few extra minutes it may take to uncover an O-1 candidate is time well spent for both lawyer and client and has served as a remedy, when it seemed as if no remedy existed.

Not too long ago, a Venezuelan national specializing in the field of sound engineering sought our advice after learning that USCIS had denied the Form I-140 filed on his behalf due to the petitioner’s inability to pay the prevailing wage at the time of filing. During the course of the initial consultation, it was discovered that this rather nondescript and extremely modest musician had in fact received a Grammy award for his sound engineering for songs performed by Ricky Martin, Shakira, Gloria Estefan, and Jon Secada. One pertinent question on the part of this individual’s prior lawyer could have uncovered accomplishments that would have led to the filing of an O-1 visa and subsequent EB-1-1. Fortunately, and notwithstanding the failed immigrant visa petition, the client had retained valid H-1B status, allowing us to change status to the O-1, thus setting the platform for the filing of the EB-1-1.

The O-1 solution is not always as obvious as in the case of the Grammy Award-Winner. A panic stricken Venezuelan business manager consulted with my firm just weeks preceding his EB-3 Petitioner’s declaration of bankruptcy. With an H-1B visa barely intact, years lost pursuing an immigrant visa through the labor certification process, and literally thousands of dollars lost in legal fees, his options appeared limited. Having had consulted with several lawyers, he was consistently advised to find a new employer, apply for an H-1B transfer, and begin the labor certification process once again. A close review of his resume and a pithy round of focused questioning about the significance of his various accomplishments in the international business arena revealed that he had been the creator of a marketing toolbox subsequently incorporated and used by a major international fast food chain. Not to mention he had presented at important international business conferences. Thus, it appeared that his case lent itself to the formulation of an O- petition. His O-1 petition was approved and thereafter his EB-1-1.

The O-1 visa has served on more than one occasion as an emergency remedy. In one such case, an H-1B business entrepreneur was staged to have his labor certification filed when he sought a second opinion regarding his daughter on the verge of turning 21 years of age. An examination of his accomplishments suggested that he, indeed, was of O-1 caliber. The question was one of sustained success since the strength of his case rested on an original contribution, which although the first of its kind, was extremely recent and had not yet been released to the general public. The client decided to proceed with the O-1 understanding the likelihood of success based on the merits. The Texas Service Center denied the O-1 petition on grounds that the accomplishments failed to rise to the level of Bill Gates. Although we felt the case was worthy of appeal, the appellate process was not a realistic option given the time constraints. Instead, we repositioned the case as an EB-1-1 and filed the immigrant visa petition concurrently with the Form I-485, Adjustment of Status. The immigrant visa petition was approved in a record two months, and the client and daughter received green cards in the mail. The lesson here is that if you believe you have a meritorious case, don’t let the O-1 denial deter you from proceeding to the EB-1-1. Since then, my firm proceeded in another case with the same result except the case was handled as a visa process rather than an adjustment of status.

The O-1 visa opened up an option for another client who consulted with us after previously being twice denied E-2 classification. This case involved a highly accomplished, not to mention wealthy entrepreneur, ranked within the top third of the 1,000 most influential business men in Great Britain. Although his business venture appeared suited to the E-2 petition process, the U.S. Embassy in London determined that the investment was neither substantial nor at sufficient risk to warrant an approval. A close look at this individual’s business exploits demonstrated that he was a perfect candidate for O-1 status as an entrepreneur of extraordinary ability in that he had founded a company at age 23 that within a couple of years singularly achieved to revamp Britain’s small business sector by offering fax machines in a practical design format for small business use. Since his early days as business entrepreneur, he had become the famed founder, owner, and CEO of various business ventures offering small and medium sized businesses continued internet presence. After receiving a three-year O-1 visa, this individual is now pending an immigrant visa, an outcome that would have been extremely difficult to achieve under the E-2.

The aforementioned examples show that an O-1 visa often serves as a viable alternative to denied or compromised nonimmigrant and immigrant visa petitions. What needs to be kept in mind, though, is that an O-1 visa petition contains requirements that demand extra time. For instance, each O-1 filing requires evidence of an advisory opinion, issued by an appropriate guild or association that has no objection to the hiring of the O-1 candidate. Some organizations require the petitioner to submit an entire copy of the O-1 package before issuing an opinion, while others accept a copy of the petitioner’s letter with a skeletal copy of the supporting evidence. To avoid surprises or delays in case filing, it is prudent to identify the organization early in the case preparation.

In the event the organization refuses to issue an opinion, it is wise to request a letter stating the reasons why. For example, one of our clients famed as a South American TV Producer, who had been offered the position of Director for a reputed American production company, encountered this exact problem. We first contacted the Producer’s Guild of America, which refused to take jurisdiction since the job offered was that of a Director. We then approached the Director’s Guild of America, which refused as well, because the client’s background was in television Production. In the end, we obtained letters from both guilds evidencing their refusal to issue the opinion, included the letters in the O-1 presentation, and the case was approved.

When it comes to gathering evidence for the O-1, assess the strength of the documentation, especially when it concerns the O-1 beneficiary’s membership in associations and organizations. This O-1 criterion may potentially weaken the case presentation if not used properly. Membership in associations must follow stringent selection criteria; thus, if you cannot document the association’s eligibility standards or otherwise distinguish your client from the general membership, you may want to consider omitting the category altogether. Putting forth unsubstantiated claims of membership in organizations that are not documented as distinguished will add nothing to the case and perhaps weaken the credibility of the overall presentation. The advice here is to commit additional time to researching the organization. Often this information is readily available on the internet.

Another O-1 eligibility criterion that warrants additional effort is the awards category. Just as in the membership category, our firm’s O-1 division researches every award’s degree of significance with the ultimate goal of establishing its equivalency to a major nationally recognized U.S. award. While this endeavor can be time-consuming, the result is worthwhile and allows for assessing the strength of the evidence and how to best use it.

Where information on either awards or membership in associations is not available, you may want to integrate appropriate analogies within the various testimonial letters. Overall, testimonial letters occupy an important place within the O-1 petition presentation. Our firm counsels against using form letters or templates. Testimonial letters represent an opportunity to fill in the gaps of your case and to highlight the details of the O-1 candidate’s background. Take a few extra minutes to interview the affiant to learn her relationship to the O-1 candidate. Ask if you may take the liberty of writing a statement to edit for accuracy. In this way, you increase the possibility of producing a uniquely written letter lined with evidence to support the claims made in the petition. Appended to every testimonial should be a copy of the affiant’s curriculum vitae, which will underscore the affiant’s own prominence, thus adding weight to the value of the statement.

When it comes to offering a salary to the O-1 candidate, the rule is not as rigid as with the H-1B visa, as there is no prevailing wage compliance. Having said that, however, keep in mind that too low a wage may pose a problem. Since the O-1 is depicted as an extraordinary professional in her field of expertise, it logically follows that her extraordinary abilities will be compensated as such. Of course, there are exceptions such as doctors involved in not-for-profit work, but in general, substantial remuneration evidences an individual of high-profile caliber.

In closing, do not immediately discount certain professions as unattainable under the O-1 category. Of main importance is the level of prominence within the area of expertise itself not so much whether the O-1 beneficiary’s job appears at the highest level of the profession’s hierarchy. Our firm has been able to secure O-1 approvals for extraordinary professionals holding jobs which at first glance did not appear to fit snuggly inside the fields of expertise set forth under the O-1 category. O-1 petitions using the job titles of Rendering Artist, Creative Writer, Fashion Consultant, and Governmental Aviation Safety Professional have in fact been approved at the same rate as those framed for professionals and job titles unmistakably fitting under the O-1 mantle, such as Scientist, Athlete, or Movie Director of extraordinary ability. As such, the O-1 visa truly is a hidden visa.

Summer Hackley is a Partner in the Weston immigration law firm of Hackley & Robertson, P.A. and specializes in the preparation of O-1 visas.