TRUE or FALSE?

 

1. Extension of O-1 status is only granted for one year increments

False!  Regulations provide that an extension of stay may be authorized in increments of up to one year. However, an O petition/extension of status by a new employer/agent OR a new position under the same employer/agent  is a new ‘event’ as defined by the regulations, and may be granted for up to three years. For instance, a Landscape Associate who was promoted to Head of Design, a Design Associate who was given additional responsibilities, or a particular term position where the term has ended may all qualify for three year extensions.

2. The O-1 position requires extraordinary ability

False! Regulations state that the O-1 petition must be accompanied by evidence that the work which the alien is coming to the United States to continue is in the area of extraordinary ability and that the alien meets the regulatory criteria. The requirement is simply that the beneficiary possesses extraordinary ability in a specific field in order to be granted O-1 status, and the O-1 is being sought to allow him to work in the related field.

3. The more recommendation letters, the better

False!  The entire petition should not consist of letters, and the letters should not overwhelm the supporting documentation. It often seems that applicants want to have more letters because they can – it gives them a feeling of power and control in increasing the strength of the petition, whereas they cannot just as easily obtain more publications, awards and other evidentiary materials. However, more letters are not necessarily better. For most cases, seven letters should be more than enough.

4. The position cannot be permanent

False! Notwithstanding the need to establish “nonimmigrant intent” when procuring an O-1 visa via consular processing, the O-1 is a recognized as a “dual-intent” visa category. Furthermore, the requirement of a residence abroad which the alien has no intention of abandoning is limited to those applying for O-2 status, not O-1.  Even prior to the O-1 being officially recognized as dual-intent, regulations state 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 petition, a request to extend a petition, or the alien’s application for admission , change of status or extension of stay. The alien may legitimately come to the United States for a temporary period…and lawfully seek to become a permanent resident.”

5. O-1 holders can travel out of the country during an adjustment of status period

False! One of the differences between the O-1 and the H-1B is that an individual holding O-1 status who travels during the pendency of an adjustment of status will be deemed to have abandoned the petitioning for adjustment of status. In order to travel during the pendency of an adjustment of status, an individual in O-1 status must first obtain Advance Parole travel authorization (H-1B status holders can travel based on an H-1B visa without having to abandon the petition for adjustment of status).

6. A recommendation letter can be used as the advisory opinion ‘consultation’ letter

True! When a recognized consultation board is not readily available in a particular industry, one of the recommendation letters can be used to satisfy the ‘consultation’ or ‘peer group’ requirement. The regulations clearly note that the consultation can be ‘a written advisory opinion from a peer group (which can be a person or persons with expertise in the field)’ presuming it discusses ‘the nature of the work to be done and the alien’s qualifications.’ Any one of the recommendation letters can fill this role.

7. An O-1 petition for an arts teacher will be adjudicated under the O-1B criteria, not the O-1A

Probably ‘true’. The O-1A standard requires sustained national or international acclaim, versus the comparatively lower standard applied to the O-1B, which requires demonstration of ‘prominence’ in the field. The Administrative Appeals Office of the USCIS (AAO) remanded a case where the USCIS found that an arts teacher is a position in education, subject to the O-1A standard, and not a position in the arts, which would be the O-1B standard. It would seem fair to assume that a beneficiary’s field should be defined by the area of claimed expertise, as long as he or she will be working in an area related to that expertise. In fact, O-1 petitions for non-arts teachers focus on their achievements in the academic field, not in the teaching of the academic field, so it is unclear as to why arts instructors would be treated any different.

For more information about the O visa classification, contact our Immigration Practice Group at 718-539-1100 or info@jckimlaw.com.