The O category is available to aliens of extraordinary ability in science, the arts, education, business, or athletics ("O-1's"). The O-3 category is for dependents of aliens in the O-1 or O-2 categories. O-1 beneficiaries in the sciences, arts, education, business or athletics must have extraordinary ability "demonstrated by sustained national or international acclaim." Such O-1's must also be recognized in their field through extensive documentation. The employer should submit USCIS Form I-129 accompanied by an 'O' Supplement, appropriate supporting documentation, and filing fee to the appropriate USCIS service center. [The scope of this overview does not include O-1 artists, entertainers, or their supporting staff members (O-2's) eligible to accompany them].
The petitioning employer must provide the U.S. Immigration and Naturalization Service ("BCIS") evidence to prove; (a) the alien's extraordinary ability or achievements; and (b) that the alien is coming to the United States to continue work in an area of extraordinary ability or achievement in which the alien qualifications are applicable.
USCIS regulations indicate "extraordinary ability" as applied to alien scientists, educators, business persons, and athletes seeking 'O' status means "a level of expertise indicating that the person is one of the small percentage who have risen to the very top of their field of endeavor." The petitioner must prove "extraordinary ability" by evidence of either the alien's receipt of a "major, internationally recognized award, such as the Nobel Prize" or documentation of at least three of the following:
USCIS regulations recognize that these eight criteria are not exclusive. Should the foregoing criteria not "readily apply," petitioners may furnish "comparable evidence".
A consultation from an involved labor union is required to accompany an O petition, or if no such union is involved, a consultation with an appropriate union with expertise in the field is acceptable. Consultations may consist either of the union's opinion regarding the nature of the proposed work and the alien's qualifications or a letter of no objection. Should a union object, its opinion is supposed to set forth a "specific statement of facts which supports the conclusion reached." All required consultations are merely "advisory" and not binding on the BCIS. If evidence reflects there are no such labor unions, the consultation requirement is deemed waived.
Attempts to secure lawful U.S. permanent residence status ("green cards") are not considered a factor when assessing if an "intent to abandon" non-immigrant status exists. As long as their "O-1" or "O-3" status remains in effect, such individuals may maintain "dual intent". No statutory time limit exists on how long an alien may maintain O-1 status other than a reference to admission for the period of the "event". USCIS has interpreted such an "event" to include scientific projects, conferences, projects, academic terms, lecture series, exhibits, etc. The initial O petition is normally granted with a three year validity date. O-1's may be admitted to the U.S. 10 days prior to the validity date of the petition, but they are not permitted to work during this 10-day period. When an O-1is terminated by the employer, with or without cause, before the end of O-1's authorized stay, the employer is liable for payment of the reasonable cost of return fare for the alien to his/her last place of foreign residence.