O1B Visa Requirement & Documents

After reading the O1B visa overview and gaining a general idea of what an O1B visa petition is, the next step is to learn about what a person would need to provide as evidence to prove that they are qualified for an O1B work visa.

The article below provides a brief overview of what the O1B visa requirements are looking for and what documents are usually submitted for each requirement.

O1B VISA REQUIREMENTS

In an O1B visa petition, the person would need to show that they (1a) have extraordinary ability in the arts (not related to the motion picture or television industry) and maintains national or international acclaim or (1b) have extraordinary achievement in the motion picture or television industry, and is prominent, renowned, leading, or well known in the industry, and (2) the person is coming to the United States to work for a U.S. employer or agent in the area of expertise listed in the O1B visa petition.

The person can show they have extraordinary ability under the O1B Arts or extraordinary achievement under the O1B MPTV by either receiving or being nominated for a significant internationally-recognized award/prize in their field of expertise OR by satisfying at least 3 of 6 criteria listed in the 8 CFR §214.2(o)(3)(iv)-(v) immigration law.

The following sections consist of a brief summary on each requirement and the documents that are generally used as evidence to satisfy that requirement.

Continue to Work in the Same Area of Expertise

After entering the United States, the person will continue to work temporarily in the same area of expertise that was used as the basis to apply for the O1B visa

The O1B work visa petition requires the person to prove that they will continue to work temporarily in the same area of expertise that was used as the basis to apply for the O1B visa after entering the United States with their approved visa.

O1B Visa Sponsoring Employer (or Agent)

The O1B work visa petition requires the foreign worker to be sponsored by a U.S. employer (or agent), which means that only the U.S. employer (or agent) can initiate and pay for an O1B visa. An O1B visa sponsoring employer (or agent) can be an (a) U.S. employer, (b) U.S. agent, or (c) foreign employer through a U.S. agent. The sponsoring employer (or agent) should have a (FEIN) federal employer identification number.

Contracts

A contract between the sponsoring employer (or agent) and the foreign O1B visa worker must be provided. The content must include the terms and conditions of the O1B person’s employment, the specific wage offered, and details of any additional services provided. Evidence required can include:

A copy of the written contract. (recommended)
A summary of the terms of the oral agreement.

When the O1B visa sponsoring person (or entity) is a U.S. agent that is performing the function of an employer, the additional evidence required are:

A written contract with the O1B worker that includes the wage, employment terms, and details on additional services.
An itinerary that includes definite employment and information on any other services planned.

When the sponsoring person (or entity) is a U.S. agent that is representing both the O1B foreign worker and one or more employers, the additional evidence required are:

Documents that show the sponsoring U.S. agent is authorized to act as an agent for the O1B worker and all the other entities that the O1B worker is contracted to perform services for.
The contracts between the O1B worker and all the other entities that the O1B worker will perform services for should include an explanation of the terms and conditions of employment.
An itinerary that shows the specific dates of the services or engagements, the names and addresses of the contracted entities, and the name and addresses of the establishments, venues, or locations where the services are performed.

When the O1B visa sponsoring person (or entity) is a U.S. agent that is filing on behalf of a foreign employer, the additional evidence required are:

Documents that show the O1B visa sponsoring U.S. agent is authorized to file this petition and accept service of process on behalf of the foreign employer.
Copies of any written contracts (or summary of the terms of the oral agreement) between the O1B worker and the foreign employer.

Itinerary and Nature of the event or engagement

An explanation of the event, performance, or competition that the O1B worker will be participating in must be provided. Evidence required can include:

Itinerary that shows the dates, name(s) of the employer(s) or sponsor(s), and the location of the event.
An explanation of the nature of the event or activities.
The start and end dates of the event or activities.

Consultation (Written Advisory Opinion)

A written advisory opinion on the O1B worker’s qualifications and the nature of the work must be provided. It has to come from a U.S. peer group in the person’s field of expertise. The U.S. peer group can be experts in the field, a union, professional organization, management organization, or other labor organizations. The content must include the O1B worker’s ability and achievements in their field, the nature of the duties that will be performed, and whether the job needs the services of an alien of extraordinary ability (O1B visa worker).

The O1B MPTV workers in the motion picture (film) and television industry must include 2 written advisory opinions from (1) an appropriate labor union (e.g., SAG-AFTRA for actors) and (2) a management organization (e.g., AMPTP, Association of Motion Picture and Television Producers) in the O1B MPTV worker’s field of expertise. Evidence required can include:

Written advisory opinion (that includes the content required and is signed by an authorized official from the organization or group).
Letter of no objection (when the consulting organization has no objection of the O1B petition being approved).
A copy of a previous consultation for O1B visa workers (does not include O1B MPTV workers) can be used to waive the requirement of obtaining a new written advisory opinion if the person has been performing the duties listed in the previous consultation and will be performing similar duties under the new O1B visa.

One-Time Significant Nationally or Internationally-Recognized Award/Prize (Received or Nominated)

The person has been nominated for or has received a significant national or international reward or prize (e.g., Emmy, Grammy, Director’s Guild Award, Academy Award) in their particular field

The O1B work visa petition requires the person to prove that they have extraordinary ability (or extraordinary achievements) in the arts and one of the two ways to do so is to provide evidence to show that the person has been given or has been nominated for a significant nationally or internationally-recognized award or prize before.

A one-time “significant nationally or internationally-recognized award/prize” under the O1B visa petition must be well-known on a national or international level as one of the top awards/prizes in the person’s field of expertise. In other words, the significant nationally or internationally-recognized awards/prizes are usually household names that the general public would immediately recognize as the highest honors in the field. For example, the Oscars (Academy Awards), Emmys, Grammys, Director’s Guild Awards can be seen as significant internationally-recognized awards/prizes under this O1B visa petition criterion.

When there are disputes as to whether the award/prize is qualified under this O1B visa petition requirement, factors listed below will be taken into consideration:

what criteria was used to grant the award/prize
the reputation of the panel or organization giving out the award
whether prior winners of the award/prize were nationally or internationally acclaimed at the time of receiving the award/prize
whether there were any substantial cash or non-cash prizes or benefits given to the award winner
if other nationally or internationally well-known people competed for the award/prize

Documents to Prepare (Significant Nationally or Internationally-Recognized Award/Prize)

Commonly used documents to prove that a person has received or been nominated for a significant nationally or internationally-recognized award or prize under an O1B visa petition includes but is not limited to:

A copy of each award or prize certificate

A clear photograph of each award or prize

A copy of the public announcement of the issuance of award(s) or nomination(s) from the granting organization

The person satisfies at least 3 of 6 criteria listed below:

The O1B work visa petition requires the person to prove that they have extraordinary ability (or extraordinary achievements) in the arts and one of the two ways to do so is to provide evidence to show that the person satisfies at least 3 of the 6 criteria listed in the 8 CFR §214.2(o)(3)(iv)-(v).

Leading or Starring Role in Distinguished Production or Event

The person has and will be performing a leading or starring role in productions or events that have distinguished reputation

One criterion to prove the person has extraordinary ability (or extraordinary achievements) under the O1B visa petition requires the person to show that they have and will be performing a leading or starring role in productions or events that have a distinguished reputation.

The O1B visa worker under this criterion must have (1) performed in a leading or starring role in the past, (2) will be performing in a leading or starring role in the future, and (3) should have more than one performance as a leading or starring role in a distinguished production or event. Under the O1B visa petition, the documents submitted as evidence should mention the person’s name and their performance in a leading or starring role.

Effective and Qualifiable Items (Leading or Starring Role in Distinguished Production or Event)

Below are some general guidelines as to what usually satisfies the “leading or starring role in distinguished production or event” criteria under an O1B visa petition.

A musician in a leading or starring role under the O1B visa must be a solo performer, featured soloist, or principal musician. Musicians who perform as a part of an ensemble, musical duo, or orchestra (even if the person was the first chair) do not qualify as performing in a leading or starring role under the O1B visa petition. For example, a drummer in a band was seen as holding a leading role but the first horn in an orchestra was not seen as holding a leading or starring role.
Exhibitions or the display and sale of products can be considered as productions or events.

Non-Effective Items (Leading or Starring Role in Distinguished Production or Event)

Below are some general guidelines as to what items are usually considered non-effective or less-effective in satisfying the “leading or starring role in distinguished production or event” criteria under an O1B visa petition.

A leading or starring role cannot be only a limited contribution in a short segment in one episode even if it is in a distinguished program (e.g., the program had won an Emmy award).
Musicians under the O1B visa who perform as a part of an ensemble, musical duo, or orchestra do not qualify as performing in a lead or starring role even if the person was first chair.

Documents to Prepare (Leading or Starring Role in Distinguished Production or Event)

Commonly used documents to prove that a person performed a leading or starring role in a distinguished production or event under an O1B visa petition includes but is not limited to:

Critical reviews
Advertisements
Publicity releases
Publications
Contracts
Endorsements
Professional credit record
Employment verification letters from previous or current employers

National or International Achievements

The person has achievements that are recognized (known) on a national or international level

One criterion to prove the person has extraordinary ability (or extraordinary achievements) under the O1B visa petition requires the person to show that they have achievements that are recognized (known) on a national or international level.

The recognized achievement under the O1B visa petition must be at least on the national level, such as in the person’s home country or within the industry of the home country. The recognition cannot be because of any other reasons than the person themselves, such as the cultural or historical significance of the project.

Documents to Prepare (National or International Achievements)

Commonly used documents to prove that a person has achievements that are recognized nationally or internationally under an O1B visa petition includes but is not limited to:

Critical reviews
Published material that is from or about the foreign worker in:

Leading, Starring, or Critical Role for Distinguished Organizations

The person has and will be performing a leading, starring, or critical role for organizations or establishments that have distinguished reputation

One criterion to prove the person has extraordinary ability (or extraordinary achievements) under the O1B visa petition requires the person to show that they have and will be performing a lead, starring, or critical role for organizations or establishments that have distinguished reputation.

The O1B visa worker under this criterion must have (1) performed in a leading, starring or critical role in the past and (2) will be performing in a lead, starring or critical role in the future. For O1B MPTV visa workers who are in the motion picture or television industry, the organizations here can be a movie (film) or television agency, an actual film (movie) or television show, or a renowned director.

Documents to Prepare (Leading, Starring, or Critical Role for Distinguished Organizations)

Commonly used documents to prove that a person has performed and will be performing a leading, starring, or critical role for distinguished organizations or establishments under an O1B visa petition includes but is not limited to:

Newspaper articles
Trade journals
Publications
Testimonials (must provide in detail the person’s role, the reputation of the organization or establishment, the author’s credential, and the basis of the author’s knowledge of person’s role)

Major Commercial or Critically Acclaimed Successes

The person has achieved major commercial or critically acclaimed successes

One criterion to prove the person has extraordinary ability (or extraordinary achievements) under the O1B visa petition requires the person to show that they have achieved major commercial or critically acclaimed successes.

This criterion under the O1B visa petition focuses on whether the person has a record of commercial successes or critical acclaims. The O1B visa worker’s commercial successes or critical acclaims must be reported in articles that are published in trade journals, major newspapers, or other publications. The articles submitted must mention the O1B worker’s achievements and cannot only focus on the discussion of the person’s technique or other matters that are not related to their achievements. For example, an article published in a national newspaper of the O1B visa worker’s home country reports about the person winning a prestigious well-known award (i.e., critical acclaim) in their field of expertise would be effective.

Documents to Prepare (Major Commercial or Critically Acclaimed Successes)

Commonly used documents to prove that the person has a record of major commercial or critically acclaimed successes under an O1B visa petition includes but is not limited to:

Title, rating, or standing in the field
Box office receipts
Record sales, video sales
Motion picture (film) or television ratings
Chart ratings
Other achievements reported in trade journals, major newspapers, or other publications (circulation information should be included)

＊An explanation of the evidence’s significance should be provided as well.

High Salary or Remuneration Compared to Others

The person has received or will receive a high salary or significantly high remuneration compared to other workers in the same field

One criterion to prove the person has extraordinary ability (or extraordinary achievements) under the O1B visa petition requires the person to show that they have received or will receive a high salary or significantly high remuneration compared to other workers in the same field.

Under this O1B visa petition criterion, the person’s salary or remuneration must be considered high when compared to what others in the same field usually receive. Generally, it should be at or above the 90th percentile in the comparable salary scales. The emphasis of this criterion in the O1B visa petition is the comparison to others in similar circumstances.

Effective and Qualifiable Items (High Salary or Remuneration Compared to Others)

Below are some general guidelines as to what usually satisfies the “high salary or remuneration compared to others” criteria under an O1B visa petition.

The comparable salary scale can be data from the United States or a foreign country depending on where the person was working at the time. For example, the person’s salary can be seen as high in Taiwan but low in the United States and still be considered effective because the standard is how the person’s salary compare to others in similar circumstances.
The salary should be at or above the 90th percentile of comparable salary scales.
The person’s salary must be high when compared to other people who have similar levels of experience working in a comparable position within the same geographical location. For example, the person’s salary may be at the 90th percentile in the salary scale of the Chicago area but only at the 70th percentile in the San Francisco area.
Bonuses may qualify as a part of the remuneration under the O1B visa petition if the person has actual receipt of the bonuses and it is included in the total wages section of the tax return.

Non-Effective Items (High Salary or Remuneration Compared to Others)

Below are some general guidelines as to what items are usually considered non-effective or less-effective in satisfying the “high salary or remuneration compared to others” criteria under an O1B visa petition.

Salary that is considered high to an average person but is low when compared to other similar workers in the person’s field of expertise would not be considered effective evidence.
Benefits (i.e. tuition reimbursements, healthcare allotments, profit-sharing incentives, stock options, 401(k) contributions, etc.) are not considered effective evidence.

Documents to Prepare (High Salary or Remuneration Compared to Others)

Commonly used documents to prove that the person receives a high salary or remuneration when compared to what other workers in similar positions usually receive in the same field under an O1B visa petition includes but is not limited to:

Contracts
Salary or remuneration records in the form of official government tax returns (e.g., Form W-2, Form 1099, or foreign equivalent)
Annual income statement, monthly pay stubs, payroll records, bank transaction statements, accountant’s letter of support
Documentation that shows the person received a high salary or other forms of compensation compared to other workers in the field (e.g., equity in lieu of cash)
Geographical or position appropriate compensation surveys, such as average salary scales of the person’s position in the field (industry), of the foreign country where the person earned their salary, or of the state where the person earned their salary in the United States can be submitted
Media coverage of notable high salaries earned by others in the person’s field of expertise
Compiled lists of top earners in the person’s professional field of expertise by credible professional organization(s) that include information such as salary or earning rankings can be submitted
Documents that show the organizational justifications to pay above the compensation data
Testimonials from industry experts
Other evidence that shows the wage rate is higher than other workers in the field

Significant Recognition from Government or Experts

The person’s achievements have received significant recognition from organizations, critics, government agencies, or recognized experts in the same field

One criterion to prove the person has extraordinary ability (or extraordinary achievements) under the O1B visa petition requires the person to show that they have received significant recognition from organizations, critics, government agencies, or recognized experts in the same field.

The recognition from organizations, critics, government agencies, or recognized experts in the same field under the O1B visa petition must be (1) significant and due to the person’s contribution, and (2) fact-specific which means it cannot just be generalized statements. For example, honorary citizenship that was awarded by a city governmental agency, or testimonials from peers, teachers, owners of art galleries, art curators, art critics that prove the artist has received significant recognition for their work.

Testimonials (must include in detail the testimonial writer’s authority, expertise, and knowledge about the O1B visa worker’s achievements)

*** For O1B (Art) workers, comparable evidence can be provided if the 6 criteria listed above do not readily apply. This is not available to O1B MPTV workers in the motion picture or television industry.

CONCLUSION (TLDR)

The overall emphasis on the documents and requirements/criteria of an O1B visa petition is that caliber at a national or international level must be shown. For example, the requirement that the person must have sustained national or international acclaim or that the person must be renowned, leading, or well known in the motion picture or television industry.

The requirements for an O1B visa petition are extensive and while ticking the boxes of requirements sounds simple enough, figuring out what items should be included and strategizing how the petition is presented is not. It is common practice and strongly encouraged to obtain an attorney for employment-based nonimmigrant visa petitions.

Alternatives to the O1B Visa Petition

For people who do not qualify for the O1B work visa petition yet, the closest alternatives for art performers (entertainers) may include filing for a P1B visa (Member of Internationally Recognized Entertainment Group), H1b visa petition (Australians can file for E-3 visa petitions), TN visa petition (for Canadian or Mexicans), or H1B3 visa petition (for fashion models) to work in the United States. Other related nonimmigrant visas for artists are tied to specific programs, such as the P2 visa (Artistic Reciprocal Exchange Program) or the P3 visa (Culturally Unique Program).

Another possible alternative to filing an O1B visa petition would be to file for a green card petition which is a permanent immigrant visa and not a temporary work visa like the O1B visa. Typically, a person who is qualifiable for an O1B visa would choose to file for an EB1a green card due to the similarities of the standards and requirements between the two visas. The EB1a green card petitions also uniquely allow the person to self-sponsor their own green card application without a specific U.S. employer. For more on green cards gained through work, please read the overview for employment-based green cards.

O1B Visa Transitioning into an EB1a Green Card

The main difference between a green card and a temporary work visa (such as an H1B visa, L1 visa, O1 visa, P1 visa, TN visa, E3 visa) is that a green card holder can freely change jobs among different employers without needing additional filings or approvals from the U.S. government. Also, unlike temporary work visas, green cards are permanent so there is no set maximum time on how long a green card holder can stay in the United States.

When the O1B visa workers decide that they would like to live in the United States permanently and do not want to be subject to the time limitations or the constant filing requirements to extend (renew) their temporary work visa, the next step for them is to file a green card petition. The EB1a (Alien of Extraordinary Ability) green card petitions are usually used by O1B visa workers because of the similar standards and requirements between the two visa categories. A close alternative would be the EB2 green card petitions under the Schedule A, Group II (exceptional ability in the arts, performing arts, science).

The EB1a green card petition is one of the fastest ways to obtain an employment-based green card because unlike other employment-based green card categories it does not require a lengthy PERM labor certification and typically does not encounter visa availability backlog issues. Also, unlike most employment-based visas (such as the O1B visa), the EB1a (Alien of Extraordinary Ability) green card can be self-sponsored (where the person can pay and start the green card petition by themselves) and does not need to be tied to a specific sponsoring U.S. employer.

Furthermore, a person can qualify for an employment-based green card no matter where they are currently residing in the world. There is no pre-requisite as to the person being in some type of nonimmigrant visa status (such as an O1B visa) or having an educational degree from a U.S. school. In other words, a person who does not have a U.S. degree and has never been to the United States can still qualify for an employment-based green card. Thus, even if a person is not in an O1B visa status yet but does have the qualifications for an O1B visa, they can alternatively choose to file for an EB1a green card petition instead.

HAVE A O1B VISA IMMIGRATION QUESTION? CONTACT US

If you have an O1B work visa (Arts, Movies, Television) immigration question, please fill out our contact us form or send us an email with some basic information about your background and your immigration needs. We will do our best to respond within 48 hours.

How we can help?

Kylie Huang Law’s immigration attorney will help identify whether the O1B visa is the appropriate nonimmigrant visa category for the client’s (or the client’s beneficiary’s) professional background and if there are other visa options for the client (or the client’s beneficiary). We will work closely with our client to prepare a convincing case for their (or it’s) O1B visa petition and we will also strategize on how the O1B visa petition should be presented to achieve the best chances of approval. It is strongly advised and common practice to retain an immigration attorney for an O1B work visa petition due to the complexities in the immigration process and visa requirements.

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