9 FAM 402.13
(U) Extraordinary Ability - O Visas
(Office of Origin: CA/VO)
9 FAM 402.13-1 (U) Statutory and Regulatory Authority
9 FAM 402.13-1(A) (U) Immigration and Nationality Act
(U) 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) (U) Code of Federal Regulations
(U) 22 CFR 41.55; 8 CFR 214.2(o).
9 FAM 402.13-2 (U) Overview of o visas
a. (U) 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, or athletics, or extraordinary achievement in motion picture and television production, and their essential support personnel. Many such individuals 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. (U) An O-1 or O-2 applicant must be the beneficiary of a petition approved by DHS before visa issuance. USCIS regulations provide that the petitioner may be either a U.S. employer or U.S. 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.
9 FAM 402.13-3 (U) CLassification SYMBOLS
(U) 22 CFR 41.12 identifies the following O visa classification in accordance with INA 101(a)(15)(O):
Worker with Extraordinary Ability or Achievement in Sciences, Arts, Education, Business or Athletics
Person Accompanying and Assisting in the Artistic or Athletic Performance by O-1
Spouse or Child of O-1 or O-2
9 FAM 402.13-4 (U) Classification Standards for O Nonimmigrants
9 FAM 402.13-4(A) (U) O-1 Nonimmigrants
a. (U) In General: The O-1 category applies to any of the following:
(1) (U) 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) (U) 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. (U) Criteria for O-1's Prospective Work: DHS interprets the statute to encompass “any field of endeavor” which may include such professions as craftsmen, lecturers, the culinary arts, etc. The O-1 visa holder must seek to enter to continue to work in the area of their extraordinary ability or achievement but there is no requirement that the position to be filled is one that would require a person of O-1 caliber.
c. (U) Defining Extraordinary Ability and Extraordinary Achievement:
(1) (U) “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) (U) 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) (U) 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” in the motion picture or television field.
9 FAM 402.13-4(B) (U) O-2 Nonimmigrants
(U) The O-2 category applies to a noncitizen 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 must be petitioned for in conjunction with the services of the O-1 to whom they provide support and is not entitled to work separate and apart from the O-1. To qualify for status, O-2s must:
(1) (U) Be an integral part of the actual performances or events and possess critical skills and experience with the O-1 that are not of a general nature and which are not possessed by others; or
(2) (U) In the case of a motion picture or television production, have skills and experience with the O-1 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 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 noncitizen is essential to the successful completion of the production.
9 FAM 402.13-4(C) (U) O-3 Nonimmigrants
(U) The O-3 category applies to the spouse and children who are accompanying or following to join a noncitizen classified as O-1 or O-2.
9 FAM 402.13-5 (U) DHS Petition Adjudications
9 FAM 402.13-5(A) (U) Department of Homeland Security (DHS) Responsible for Adjudicating O Petitions
a. (U) Every O-1 and O-2 must be the beneficiary of a petition, approved by USCIS before visa issuance or, in the case of visa-exempt noncitizens, admission into the United States. By mandating a preliminary petition, Congress placed responsibility and authority with USCIS to determine whether the requirements for O status, which are examined in the petition process, have been met.
b. (U) You should not request the Department to provide status reports on petitions filed with USCIS, nor should you contact USCIS directly for such reports. As an alternative, you may suggest that the applicant communicate with the petitioner. 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) (U) Effect of Filing Immigrant Visa Petition
(U) USCIS has determined that the approval of a permanent labor certification or the filing of a preference petition shall not be a basis for denying classification as an O-1 or O-3 dependent. The noncitizen may legitimately come to the United States for a temporary period as an O-1 or O-3 dependent nonimmigrant and depart voluntarily at the end of their authorized stay and, at the same time, lawfully seek to become an LPR of the United States.
9 FAM 402.13-5(C) (U) Consultation Requirement
(U) Consultations with an appropriate U.S. 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 individual's qualifications is mandatory before a petition for an O-1 or O-2 classification can be approved by USCIS. Consultations are normally in the form of a written AO, which is normally submitted when the petitioner files the petition with USCIS. The AO is usually mandatory, although USCIS 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 USCIS.
9 FAM 402.13-5(D) (U) Effect of Labor Disputes
a. (U) USCIS will deny an O petition if the Secretary of Labor certifies that a strike or labor dispute involving a work stoppage is in progress in the occupation at the place where the individual will be employed, and the employment would adversely affect the wages and working conditions of U.S. workers. If the petition has already been approved, but the noncitizen 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. (U) Should you receive notification from USCIS, 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 petition, you may contact your post liaison at CA/VO/F.
9 FAM 402.13-6 (U) Petition Procedures
9 FAM 402.13-6(A) (U) Using Form I-129, Petition for a Nonimmigrant Worker, to File Petition
a. (U) A U.S. employer, a U.S. agent, or foreign employer (through a U.S. agent) uses Form I-129, Petition for a Nonimmigrant Worker, to petition for an O-1 or O-2.
b. (U) Form I-129 must be filed in accordance with DHS regulations and USCIS form instructions. The petition may not be filed more than one year before the actual need for the beneficiary'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) (U) Services in More Than One Location
(U) A petition which requires the beneficiary to work in more than one location must include an itinerary with the dates and locations of work.
9 FAM 402.13-6(C) (U) Services for More Than One Employer
(U) If the beneficiary will concurrently work for more than one employer within the same time, each employer must file a separate petition with USCIS or in some circumstances an agent can, on the employers' behalf, file one petition which encompasses all the separate employers if authorized by all 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, a new or amended petition, as applicable, may be required.
9 FAM 402.13-6(D) (U) Change of Employer
(U) If an O-1 or O-2 in the United States seeks to change employers, the new employer must file a petition in accordance with DHS regulations and USCIS form instructions. An O-2 may change employers only in conjunction with a change of employers by the principal O-1. 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) (U) Amended Petition
(U) A petitioner shall file an amended petition, with fee, in accordance with DHS regulations and USCIS form instructions to reflect any material changes in the terms and conditions of employment or the beneficiary’s 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 of the petition without filing an amended petition.
9 FAM 402.13-6(F) (U) Agents as Petitioners
(U) A U.S. agent may file an O petition in cases involving a beneficiary who is traditionally self-employed or who uses agents to arrange short-term employment on their behalf with numerous employers, and in cases where a foreign employer authorizes the agent to act in its behalf.
9 FAM 402.13-6(G) (U) Beneficiaries
a. (U) 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. (U) Multiple Beneficiaries: More than one O-2 accompanying beneficiary may be included on a petition if they are assisting the same O-1 for the same event or performances, during the same period and in the same location.
c. (U) Substituting Beneficiaries Not Permitted: Since O-1 petitions relate to individuals, rather than groups or teams, substitution of the beneficiary named in the O-1 petition is not permitted. Thus, a new petition is 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) (U) Department of Homeland Security (DHS) Notification to Petitioner of Petition Approval
(U) USCIS uses Form I-797 Notice of Action to notify the petitioner that the O petition has been approved or that the extension of stay in O status for the beneficiary has been granted, as applicable. The approval notice shall include the beneficiary’s name, classification, and the petition’s period of validity. The petitioner may furnish Form I-797 to the beneficiary for their O visa (although the petition must still be verifiable through PIMS) or to facilitate the beneficiary’s admission into the United States, either initially or after a temporary absence abroad during the beneficiary’s stay in O status.
9 FAM 402.13-6(I) (U) Transmission of Approved Petition to Post Via the Kentucky Consular Center (KCC)
(U) USCIS scans and uploads O petitions and supporting evidence into PIMS, which you can access through the CCD. PIMS allows all information on a petitioner, petition, and/or beneficiary to be linked through a centrally managed CCD service.
9 FAM 402.13-7 (U) Validity of Approved O Petitions
a. (U) An approved petition for a beneficiary classified O-1 will be valid for a period determined by USCIS to be necessary to accomplish the event or activity, not to exceed three years.
b. (U) An approved petition for a beneficiary classified O-2 will be valid for a period determined to be necessary for the O-1 artist or athlete to accomplish the event or activity, not to exceed three years.
c. (U) 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 orally and in writing that they can only use the visa to apply for admission to the United States starting ten days before 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. (U) 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, to continue or complete the same activity or event specified in the original petition. Supporting documents are not required unless requested by USCIS. A petition extension may be filed only if the validity of the original petition has not expired.
9 FAM 402.13-8 (U) Length of Stay
a. (U) An O-1 or O-2 nonimmigrant may be admitted to the United States for the validity of the petition, plus up to ten days before the validity of the petition begins and ten days after it ends. The nonimmigrant may not work except during the validity 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 H-1B and L-1 visa classifications.
b. (U) Extension of Stay: The petitioner must request the extension of a nonimmigrant’s stay in the United States on the same Form I-129, Petition for a Nonimmigrant Worker, used to file for the extension of the petition. The effective dates of the petition extension and of the beneficiary’s extension of stay are generally the same, however the approved status request could include up to 10 additional days consistent with DHS regulations. The beneficiary must be physically present in the United States when the extension of stay petition is filed. If the nonimmigrant is required to leave the United States for business or personal reasons while the extension requests are pending, the petitioner may ask USCIS to notify the consular office abroad where the individual will apply for a visa.
c. (U) 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 they are admitted, plus an additional 10 days to allow the beneficiary to get their personal affairs in order.
9 FAM 402.13-9 (U) IssuING O Visas
9 FAM 402.13-9(A) (U) Effect of an Approved Petition on Visa Adjudication
a. (U) An approved petition is 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 applicant of the burden of establishing visa eligibility. While most petitions are valid, you should confirm that the facts in the petition are true during the visa interview. Remember that USCIS interacts solely with the petitioner; the interview is the first point during the petition-based visa process where a USG representative can interact with the beneficiary of the petition. Additionally, you benefit from cultural and local knowledge that adjudicators at USCIS do not possess, making it easier to spot exaggerations or misrepresentation in qualifications.
b. (U) You must suspend action on the application and submit a report to the approving USCIS Service Center via the Kentucky Consular Center (KCC) if you know or have reason to believe that the applicant is not entitled to the classification as approved. For more information on refusing O visas see 9 FAM 402.13-10 below.
9 FAM 402.13-9(B) (U) Verifying Petition Approval
a. (U) PIMS or PCQS are the resources available to you to confirm that a petition has been approved. You may schedule an interview based on an approved Form I-129 or Form I-797 presented by the applicant or the applicant’s confirmation that the petition has been approved. An O visa must not be issued, however, unless a record of the approved petition is in PIMS or PCQS.
c. (U) If PIMS does not contain the petition approval, you can check PCQS (found in the CCD under the Other Agencies/Bureaus tab) for confirmation that USCIS has approved the petition before sending an email to KCC to confirm that such petition has been approved and is in PIMS. In PCQS, under Search Criteria, select Receipt Number; then enter the number from the Form I-797; e.g., EAC1234567890. Select Receipt Number in the search type and select CLAIMS 3 as the system. Navigate to the CLAIMS 3 record and confirm USCIS approved the petition along with the validity dates. The presence of a CLAIMS 3 record alone is not indicative of its approval. If you find a petition approval in PCQS that was not in PIMS, you should send an email to PIMS@state.gov as follows: "Petition with Receipt Number EAC1234567890 was found in PCQS but not in PIMS." In the event the case is not available within two days, you should contact the KCCFPM@state.gov mailbox. You may not issue an O visa to an eligible applicant without verification of petition approval either through PIMS or PCQS.
d. (U) 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. KCC will research approval of the petition and, if able to confirm its approval, will make the details available through the CCD within two working days. If the petition is not available before visa interview, you may submit requests to KCC no more than five working days before the scheduled interview date. You must check PIMS before submitting a request to PIMS@state.gov. KCC will check the USCIS CLAIMS database and will upload the CLAIMS report into PIMS so that you can proceed with the scheduled interview. Always conduct a PIMS query before sending in these special requests, to avoid overburdening KCC.
9 FAM 402.13-9(C) (U) Validity of O Visas
(U) The validity of an O visa may not exceed the validity of a petition approved to accord O status. If the validity period shown in the reciprocity schedules is less than the validity of the approved petition or extension of stay, the shorter validity prevails.
9 FAM 402.13-9(D) (U) Issuing a Single O Visa Based on More Than One Petition
(U) If the applicant 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) below) from all petitions must be placed on the visa.
9 FAM 402.13-9(E) (U) Limiting O Visas
(U) You may restrict visa validity in some cases to less than the validity period of the approved petition or authorized period of stay (for example, based on 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) below, insert the following:
“PETITION VALID TO (Date)".
9 FAM 402.13-9(F) (U) Annotating O Visas
(U) Follow the standard operating instructions for annotating visas; for more details see 9 FAM 403.9-5(E).
9 FAM 402.13-9(G) (U) Reissuing O Visas
(U) When an O visa is limited by reciprocity to a validity period less than the validity of the petition or authorized period of stay, you may use the same, still-valid petition to issue the applicant a new visa repeatedly 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 (U) REFUSING O VISAS
a. (U) Applying 214(b): An O-1 applicant is presumed to be an immigrant until they establish to your satisfaction that they are 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), an intent to remain temporarily 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 they do 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-3s accompanying the O-1 principal applicant.
b. (U) Unlike the O-1 nonimmigrant, the O-2 visa applicant must satisfy you that they have a residence abroad and no intent to abandon that residence. This same standard applies to O-3s accompanying the O-2 principal applicant.
c. (U) Referring Approved O Petition to USCIS for Reconsideration: For guidance on sending a petition to USCIS for reconsideration, refer to 9 FAM 601.13.
9 FAM 402.13-11 (U) Spouse and Children of O-1 or O-2
a. (U) The spouse and children of an O-1 or O-2, 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. 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. (U) Employment Prohibited: Noncitizens in O-3 status are generally not authorized to accept employment. The spouse and children of an O principal 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-3s are permitted to study during their stay in the United States.
c. (U) Verification that the Principal is Maintaining Status: When an applicant applies for an O-3 visa to follow to join a principal already in the United States, you must be satisfied that the principal 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 in the United States submit a copy of their Form I-94, Arrival and Departure Record, (if the principal received a paper I-94, copies of both sides must be submitted) and a copy of their 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 (U) Return Transportation When Employment Involuntarily Terminated
(U) If an O nonimmigrant’s employment terminates for reasons other than voluntary resignation, the employer and petitioner who sought the individual’s O status are responsible for providing the reasonable cost of the individual's transportation to their last place of residence before entry into the United States.