UNCLASSIFIED (U)
9 FAM 402.13
(U) Extraordinary Ability - O Visas
(CT:VISA-1848; 10-06-2023)
(Office of Origin: CA/VO)
9 FAM 402.13-1 (U) Statutory andRegulatory Authority
9 FAM 402.13-1(A) (U)Immigration and Nationality Act
(CT:VISA-1289; 05-26-2021)
(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) (8U.S.C. 1184(a)(2)(A)); INA 214(c) (8 U.S.C. 1184(c).
9 FAM 402.13-1(B) (U) Code ofFederal Regulations
(CT:VISA-1459; 01-25-2022)
(U) 22 CFR 41.55; 8 CFR 214.2(o).
9 FAM 402.13-2 (U) Overview of ovisas
(CT:VISA-1635; 10-13-2022)
a. (U) The O classification wascreated by the Immigration Act of 1990, Public Law 101-649 of November 29,1990, to provide specifically for the admission of persons with extraordinaryability in the sciences, arts, education, business, or athletics, or extraordinaryachievement in motion picture and television production, and their essentialsupport personnel. Many such individuals were previously classified as H-1Bnonimmigrants. Since the H-1B classification was not originally designed toaddress these classes of activities, Congress determined that they should beseparated from that classification and treated independently.
b. (U) An O-1 or O-2 applicantmust be the beneficiary of a petition approved by DHS before visa issuance.USCIS regulations provide that thepetitioner may be either a U.S. employer or U.S. agent. While O-1 beneficiariesmay not self-petition, a separate legal entity owned by the O-1 beneficiary maybe eligible to file a petition on behalf of the O-1 beneficiary.
9 FAM 402.13-3 (U) CLassificationSYMBOLS
(CT:VISA-1828; 09-12-2023)
(U) 22 CFR 41.12 identifies thefollowing O visa classification in accordance with INA 101(a)(15)(O):
| O-1 | Worker with Extraordinary Ability or Achievement in Sciences, Arts, Education, Business or Athletics |
| O-2 | Person Accompanying and Assisting in the Artistic or Athletic Performance by O-1 |
| O-3 | 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-1Nonimmigrants
(CT:VISA-1635; 10-13-2022)
a. (U) In General: The O-1category applies to any of the following:
(1) (U) An individual who hasextraordinary ability in the sciences, arts, education, business, or athleticswhich has been demonstrated by sustained national or international acclaim, andwho is coming temporarily to the United States to continue work in the area ofextraordinary ability; or
(2) (U) An individual who hasa demonstrated record of extraordinary achievement in motion picture and/or televisionproductions, and who is coming temporarily to the United States to continuework in the area of extraordinary achievement.
b. (U) Criteria for O-1's ProspectiveWork: DHS interprets the statute to encompass “any field ofendeavor” which may include such professions as craftsmen, lecturers, theculinary arts, etc. The O-1 visa holder must seek to enter to continue to workin the area of their extraordinary ability or achievement but there is norequirement that the position to be filled is one that would require a personof O-1 caliber.
c. (U) Defining Extraordinary Abilityand Extraordinary Achievement:
(1) (U) “Extraordinaryability” in science, education, business, or athletics is defined as“a level of expertise indicating that the person is one of the smallpercentage who has arisen to the very top of the field of endeavor.”
(2) (U) Extraordinary abilityin the arts means “distinction.” This category requires thepetition to establish that “a person described as prominent is renowned,leading, or well-known in the field of arts.”
(3) (U) Extraordinaryachievement in the motion picture and television industry means a very highlevel of accomplishment as evidenced by a degree of skill and recognitionsignificantly above that ordinarily encountered. The person must be“outstanding, notable, or leading” in the motion picture ortelevision field.
9 FAM 402.13-4(B) (U) O-2Nonimmigrants
(CT:VISA-1459; 01-25-2022)
(U) The O-2 category applies to anoncitizen who is coming temporarily to the United States solely to assist inthe artistic or athletic performance of an O-1 nonimmigrant. An O-2 must bepetitioned for in conjunction with the services of the O-1 to whom they providesupport and is not entitled to work separate and apart from the O-1. Toqualify for status, O-2s must:
(1) (U) Be an integral part ofthe actual performances or events and possess critical skills and experiencewith the O-1 that are not of a general nature and which are not possessed byothers; or
(2) (U) In the case of amotion picture or television production, have skills and experience with theO-1 which are not of a general nature and which are critical, either based on apre-existing and longstanding working relationship with the O-1 or, if inconnection with a specific production only, because significant production(including pre- and post-production) will take place both inside and outsidethe United States and the continuing participation of the noncitizen isessential to the successful completion of the production.
9 FAM 402.13-4(C) (U) O-3Nonimmigrants
(CT:VISA-1459; 01-25-2022)
(U) The O-3 category applies tothe spouse and children who are accompanying or following to join a noncitizenclassified as O-1 or O-2.
9 FAM 402.13-5 (U) DHS PetitionAdjudications
9 FAM 402.13-5(A) (U)Department of Homeland Security (DHS) Responsible for Adjudicating O Petitions
(CT:VISA-1848; 10-06-2023)
a. (U) Every O-1 and O-2 mustbe the beneficiary of a petition, approved by USCIS before visa issuance or, inthe case of visa-exempt noncitizens, admission into the United States. Bymandating a preliminary petition, Congress placed responsibility and authoritywith USCIS to determine whether the requirements for O status, which areexamined in the petition process, have been met.
b. (U) You should not requestthe Department to provide status reports on petitions filed with USCIS, norshould you contact USCIS directly for such reports. As an alternative, you maysuggest that the applicant communicate with the petitioner. Cases of publicrelations significance may be submitted to the Department by emailing your postliaison in CA/VO/F.
9 FAM 402.13-5(B) (U) Effectof Filing Immigrant Visa Petition
(CT:VISA-1635; 10-13-2022)
(U) USCIS has determined that theapproval of a permanent labor certification or the filing of a preferencepetition shall not be a basis for denying classification as an O-1 or O-3dependent. The noncitizen may legitimately come to the United States for atemporary period as an O-1 or O-3 dependent nonimmigrant and depart voluntarilyat the end of their authorized stay and, at the same time, lawfully seek tobecome an LPR of the United States.
9 FAM 402.13-5(C) (U)Consultation Requirement
(CT:VISA-1848; 10-06-2023)
(U) Consultations with anappropriate U.S. peer group (which could include a person or persons withexpertise in the field), labor, and/or management organization regarding thenature of the work to be done and the individual's qualifications is mandatorybefore 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 normallysubmitted when the petitioner files thepetition with USCIS. The AO is usually mandatory, although USCIS may obtain orwaive it under certain circ*mstances (for example, if no appropriate unionexists). Consultations are advisory in nature and are not binding on USCIS.
9 FAM 402.13-5(D) (U) Effectof Labor Disputes
(CT:VISA-1635; 10-13-2022)
a. (U) USCIS will deny an Opetition if the Secretary of Labor certifies that a strike or labor disputeinvolving a work stoppage is in progress in the occupation at the place wherethe individual will be employed, and the employment would adversely affect the wagesand working conditions of U.S. workers. If the petition has already beenapproved, but the noncitizen has not yet entered the United States or commencedemployment, the approval of the petition is automatically suspended andapplication for admission shall be denied.
b. (U) Should you receivenotification from USCIS, the Department, or another official source that apreviously approved petition has been suspended because of a strike or otherlabor dispute, you must defer visa issuance and follow whatever instructionsare given regarding the disposition of the suspended petition. If you have anyquestions regarding the validity of a petition, you may contact your postliaison at CA/VO/F.
9 FAM 402.13-6 (U) PetitionProcedures
9 FAM 402.13-6(A) (U) UsingForm I-129, Petition for a Nonimmigrant Worker, to File Petition
(CT:VISA-1289; 05-26-2021)
a. (U) A U.S. employer, a U.S.agent, or foreign employer (through a U.S. agent) uses Form I-129, Petition fora Nonimmigrant Worker, to petition for an O-1 or O-2.
b. (U) Form I-129 must be filedin accordance with DHS regulations and USCIS form instructions. The petitionmay not be filed more than one year before the actual need for thebeneficiary's services. Form I-129 is also used to request extensions ofpetition 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
(CT:VISA-1289; 05-26-2021)
(U) A petition which requires thebeneficiary to work in more than one location must include an itinerary withthe dates and locations of work.
9 FAM 402.13-6(C) (U) Services for More Than One Employer
(CT:VISA-1848; 10-06-2023)
(U) If the beneficiary willconcurrently work for more than one employer within the same time, each employermust file a separate petition with USCIS or in some circ*mstances an agent can,on the employers' behalf, file one petition which encompasses all the separateemployers if authorized by all the employers individually. Employment by the Ononimmigrant other than the specific employment listed in the petition isstrictly prohibited. If an applicant wishes to add an employer, a new oramended petition, as applicable, may be required.
9 FAM 402.13-6(D) (U) Change of Employer
(CT:VISA-1289; 05-26-2021)
(U) If an O-1 or O-2 in the UnitedStates seeks to change employers, the new employer must file a petition inaccordance with DHS regulations and USCIS form instructions. An O-2 may changeemployers 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 befiled with evidence relating to the new employer. A request for an extensionof stay must also be filed.
9 FAM 402.13-6(E) (U) Amended Petition
(CT:VISA-1635; 10-13-2022)
(U) A petitioner shall file anamended petition, with fee, in accordance with DHS regulations and USCIS forminstructions to reflect any material changes in the terms and conditions ofemployment or the beneficiary’s eligibility as specified in the originalapproved petition. In the case of a petition filed for an artist orentertainer, a petitioner may add additional performances or engagements duringthe validity of the petition without filing an amended petition.
9 FAM 402.13-6(F) (U) Agents as Petitioners
(CT:VISA-1635; 10-13-2022)
(U) A U.S. agent may file an Opetition in cases involving a beneficiary who is traditionally self-employed orwho uses agents to arrange short-term employment on their behalf with numerousemployers, and in cases where a foreign employer authorizes the agent to act inits behalf.
9 FAM 402.13-6(G) (U)Beneficiaries
(CT:VISA-1289; 05-26-2021)
a. (U) Named Beneficiaries:Form I-797, Notice of Action and the record of petition approval in PIMS orPCQS 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 ifthey are assisting the same O-1 for the same event or performances, during thesame period and in the same location.
c. (U) Substituting Beneficiaries NotPermitted: Since O-1 petitions relate to individuals, rather thangroups or teams, substitution of the beneficiary named in the O-1 petition isnot permitted. Thus, a new petition is required in the case of a change ofbeneficiary. Substitutions of beneficiaries are not permitted on O-2 petitioncases.
9 FAM 402.13-6(H) (U)Department of Homeland Security (DHS) Notification to Petitioner of PetitionApproval
(CT:VISA-1848; 10-06-2023)
(U) USCIS uses Form I-797 Noticeof Action to notify the petitioner that the O petition has been approved orthat the extension of stay in O status for the beneficiary has been granted, asapplicable. The approval notice shall include the beneficiary’s name,classification, and the petition’s period of validity. The petitioner mayfurnish Form I-797 to the beneficiary for their O visa (although the petitionmust still be verifiable through PIMS) or to facilitate the beneficiary’sadmission into the United States, either initially or after a temporary absenceabroad 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)
(CT:VISA-1848; 10-06-2023)
(U) USCIS scans and uploads Opetitions and supporting evidence into PIMS, which you can access through theCCD. PIMS allows all information on a petitioner, petition, and/or beneficiaryto be linked through a centrally managed CCD service.
9 FAM 402.13-7 (U) Validity ofApproved O Petitions
(CT:VISA-1635; 10-13-2022)
a. (U) An approved petition fora beneficiary classified O-1 will be valid for a period determined by USCIS tobe necessary to accomplish the event or activity, not to exceed three years.
b. (U) An approved petition fora beneficiary classified O-2 will be valid for a period determined to benecessary for the O-1 artist or athlete to accomplish the event or activity,not to exceed three years.
c. (U) You are authorized toaccept and issue visas to qualified applicants up to 90 days in advance ofapplicants’ beginning of status as noted on the Form I-797. You mustinform applicants orally and in writing that they can only use the visa toapply for admission to the United States starting ten days before the beginningof the approved status period noted on their Form I-797. See 9 FAM 402.13-8 below. Inaddition, such visas must be annotated:
“Not valid until (ten days prior to thepetition validity date)”.
d. (U) Petition Extension: Thepetitioner 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 activityor event specified in the original petition. Supporting documents are notrequired unless requested by USCIS. A petition extension may be filed only ifthe validity of the original petition has not expired.
9 FAM 402.13-8 (U) Length ofStay
(CT:VISA-1848; 10-06-2023)
a. (U) An O-1 or O-2nonimmigrant may be admitted to the United States for the validity of thepetition, plus up to ten days before the validity of the petition begins andten days after it ends. The nonimmigrant may not work except during thevalidity of the petition. There is not an overall time limit as to how long onemay be present in the United States in total in an O-1 status, such as there isfor the H-1B and L-1 visa classifications.
b. (U) Extension of Stay: Thepetitioner must request the extension of a nonimmigrant’s stay in theUnited States on the same Form I-129, Petition for a Nonimmigrant Worker, usedto file for the extension of the petition. The effective dates of the petitionextension and of the beneficiary’s extension of stay are generally thesame, however the approved status request could include up to 10 additionaldays consistent with DHS regulations. The beneficiary must be physicallypresent in the United States when theextension of stay petition is filed. If the nonimmigrant is required to leavethe United States for business or personal reasons while the extension requestsare pending, the petitioner may ask USCIS to notify the consular office abroadwhere the individual will apply for a visa.
c. (U) Extension Periods: Anextension of stay may be authorized in increments of up to one year for an O-1or O-2 nonimmigrant to continue or complete the same event or activity forwhich they are admitted, plus an additional 10 days to allow the beneficiary toget their personal affairs in order.
9 FAM 402.13-9 (U) IssuING OVisas
9 FAM 402.13-9(A) (U) Effectof an Approved Petition on Visa Adjudication
(CT:VISA-1635; 10-13-2022)
a. (U) An approved petition isprima facie evidence that the requirements for visa classification, which areexamined by a USCIS adjudicator during the petition process, have been met.However, the approval of a petition by USCIS does not relieve the applicant ofthe burden of establishing visa eligibility. While most petitions are valid,you should confirm that the facts in the petition are true during the visainterview. Remember that USCIS interacts solely with the petitioner; theinterview is the first point during the petition-based visa process where a USGrepresentative can interact with the beneficiary of the petition.Additionally, you benefit from cultural and local knowledge that adjudicatorsat USCIS do not possess, making it easier to spot exaggerations or misrepresentationin qualifications.
b. (U) You must suspend actionon the application and submit a report to the approving USCIS Service Centervia the Kentucky Consular Center (KCC) if you know or have reason to believethat the applicant is not entitled to the classification as approved. For moreinformation on refusing O visas see 9 FAM 402.13-10 below.
9 FAM 402.13-9(B) (U)Verifying Petition Approval
(CT:VISA-1848; 10-06-2023)
a. (U) PIMS or PCQS are theresources available to you to confirm that a petition has been approved. You mayschedule an interview based on an approvedForm I-129 or Form I-797 presented by the applicant or the applicant’s confirmation that thepetition has been approved. An O visamust not be issued, however, unless a record of the approvedpetition is in PIMS or PCQS.
b. Unavailable
c. (U) If PIMS does notcontain the petition approval, you can check PCQS (found in the CCD under theOther Agencies/Bureaus tab) for confirmation that USCIS has approved thepetition before sending an email to KCC to confirm that such petition has beenapproved and is in PIMS. In PCQS, under Search Criteria, select ReceiptNumber; then enter the number from the Form I-797; e.g., EAC1234567890. SelectReceipt Number in the search type and select CLAIMS 3 as the system. Navigateto the CLAIMS 3 record and confirm USCIS approved the petition along with thevalidity dates. The presence of a CLAIMS 3 record alone is not indicative ofits approval. If you find a petition approval in PCQS that was not in PIMS, youshould send an email to PIMS@state.gov asfollows: "Petition with Receipt Number EAC1234567890 was found in PCQS butnot in PIMS." In the event the case is not available within two days, youshould contact the KCCFPM@state.gov mailbox.You may not issue an O visa to an eligible applicant without verification ofpetition approval either through PIMS or PCQS.
d. (U) If you are unable toimmediately locate information on a specific petition either through PIMS orPCQS, you must send an email to PIMS@state.gov. KCC will research approval ofthe petition and, if able to confirm its approval, will make the details availablethrough the CCD within two working days. If the petition is not available beforevisa interview, you may submit requests to KCC no more than five working days beforethe scheduled interview date. You must check PIMS before submitting a requestto PIMS@state.gov. KCC will check the USCIS CLAIMS database and will uploadthe CLAIMS report into PIMS so that you can proceed with the scheduledinterview. Always conduct a PIMS querybefore sending in these special requests, to avoid overburdening KCC.
9 FAM 402.13-9(C) (U) Validityof O Visas
(CT:VISA-1635; 10-13-2022)
(U) The validity of an O visa maynot exceed the validity of a petition approved to accord O status. If the validityperiod shown in the reciprocity schedules is less than the validity of theapproved petition or extension of stay, the shorter validity prevails.
9 FAM 402.13-9(D) (U) Issuinga Single O Visa Based on More Than One Petition
(CT:VISA-1289; 05-26-2021)
(U) If the applicant is thebeneficiary of two or more O petitions and does not plan to depart from theUnited States between engagements, you may issue a single O visa valid untilthe expiration date of the last expiring petition, reciprocity permitting. Therequired annotations (see 9FAM 402.13-9(F) below) from all petitions must be placed on the visa.
9 FAM 402.13-9(E) (U) LimitingO Visas
(CT:VISA-1635; 10-13-2022)
(U) You may restrict visa validityin some cases to less than the validity period of the approved petition orauthorized period of stay (for example, based on reciprocity or the terms ofan order waiving a ground of ineligibility). In any such case, in addition tothe annotations described in 9FAM 402.13-9(F) below, insert the following:
“PETITION VALID TO (Date)".
9 FAM 402.13-9(F) (U)Annotating O Visas
(CT:VISA-1459; 01-25-2022)
(U) Follow the standard operatinginstructions for annotating visas; for more details see 9 FAM 403.9-5(E).
9 FAM 402.13-9(G) (U)Reissuing O Visas
(CT:VISA-1848; 10-06-2023)
(U) When an O visa is limited byreciprocity to a validity period less than the validity of the petition orauthorized period of stay, you may use the same, still-valid petition to issuethe applicant a new visa repeatedly withinthe allowable period. If a fee is prescribed by the reciprocity schedules, youmust collect the fee for each reissuance of the O visa.
9 FAM 402.13-10 (U) REFUSING OVISAS
(CT:VISA-1635; 10-13-2022)
a. (U) Applying 214(b): An O-1applicant is presumed to be an immigrant until they establish to yoursatisfaction that they are entitled to O-1 nonimmigrant status, and thestandards for applying 214(b) described in 9 FAM 302.1-2(B)(3) apply to O-1 applicants. Under 8 CFR214.2(o)(13), an intent to remain temporarily in the United States is arequirement for O-1 classification. However, an applicant for an O-1 visa doesnot have to have a residence abroad which they do not intend to abandon.Further, as explained in 9FAM 402.13-5(B) above, “dual intent” is permissible for O-1visa holders. These same standards apply to O-3s accompanying the O-1principal applicant.
b. (U) Unlike the O-1nonimmigrant, the O-2 visa applicant must satisfy you that they have aresidence abroad and no intent to abandon that residence. This same standardapplies to O-3s accompanying the O-2 principal applicant.
c. (U) Referring Approved OPetition to USCIS for Reconsideration: For guidance on sending a petition toUSCIS for reconsideration, refer to 9 FAM 601.13.
9 FAM 402.13-11 (U) Spouse andChildren of O-1 or O-2
(CT:VISA-1635; 10-13-2022)
a. (U) The spouse and childrenof an O-1 or O-2, who are accompanying or following to join in the UnitedStates, are entitled to O-3 classification and are subject to the same visavalidity, 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 anonimmigrant, see 9 FAM 402.1-4and 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 theyqualify independently for a classification in which employment is, or can be,authorized. You must take this into account in evaluating whether familymembers have furnished adequate evidence of their support while in the UnitedStates. O-3s are permitted to study during their stay in the United States.
c. (U) Verification that thePrincipal is Maintaining Status: When an applicant applies for an O-3visa to follow to join a principal already in the United States, you must besatisfied that the principal is maintaining O status before issuing the visa.If there are no readily available means of verification, you may suggest to theapplicant 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, copiesof both sides must be submitted) and a copy of their current visa forpresentation to you. You may also wish to check PIMS and ADIS for arrival anddeparture information, if available.
9 FAM 402.13-12 (U) ReturnTransportation When Employment Involuntarily Terminated
(CT:VISA-1635; 10-13-2022)
(U) If an O nonimmigrant’semployment terminates for reasons other than voluntary resignation, theemployer and petitioner who sought the individual’s O status areresponsible for providing the reasonable cost of the individual'stransportation to their last place of residence before entry into the UnitedStates.
UNCLASSIFIED (U)
