The O-1 visa is a temporary work visa available to those foreign nationals who have “extraordinary ability in the sciences, arts, education, business or athletics” which “have been demonstrated by sustained national or international acclaim.” It is also available to those in motion pictures and television who can demonstrate a record of “extraordinary achievement.” The INS interprets the statute very broadly to encompass most fields of creative endeavor. For example, chefs, carpenters and lecturers can all obtain O-1 visas. The person entering the US must be coming to work in their field of ability, but the position need not require the services of a person of extraordinary ability.

Extraordinary Ability in Science, Education, Business or Athletics

To obtain an O-1 visa to work in the sciences, education, business or athletics, applicants must demonstrate that they possess “a level of expertise indicating that the person is one of the small percentage who have risen to the top of the field of endeavor.” There are two ways to demonstrating this expertise. One method is through receiving a major internationally recognized award such as a Nobel Prize. The more common way is by providing documentation in three of the following categories:

• Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor
• Membership in associations in the field which require outstanding achievements of their members
• Published material about the alien
• Participation as a judge of the work of others in the same or allied fields
• Evidence of original contributions of significance in the field
• Authorship of scholarly articles
• Evidence of employment in a critical or essential capacity for organizations with a distinguished reputation
• Evidence that the alien has or will command a high salary

Extraordinary Ability in the Field of Art

Extraordinary ability in the arts means that the applicant has attained “distinction.” Distinction is defined as “a high level of achievement in the field of arts evidence by a degree of skill and recognition substantially above that ordinarily encountered.” Distinction has also been defined as prominence in the field of endeavor. The applicant can demonstrate distinction by being the nominee or recipient of an important national or international prize such as an Academy Award, Emmy, or Grammy, or by submitting documentation in at least three of the following categories:

• Evidence that the alien has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity released, publications contracts, or endorsements;Evidence that the alien has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications;
• Evidence that the alien has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials;
• Evidence that the alien has a record or major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications;
• Evidence that the alien has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the filed in which the alien is engaged. Such testimonials must be in a form which clearly indicates the author’s authority, expertise, and knowledge of the alien’s achievements; or
• Evidence that the alien has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidence by contracts or other reliable evidence.

• Be an integral part of the actual performance
• Have critical skills and experience that cannot be performed by others
• In television and motion pictures, have a long-standing working relationship with the O-1 alien.

Gregory Siskind is a partner in Siskind, Susser, Haas & Devine's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at gsiskind@visalaw.com.