Persons of Extraordinary Ability in Arts, Science, Business and Athletics: O-1 Application Procedures if Inside the United States
Step One: Securing the Consultation Letter
First, an “advisory opinion” or “consultation” letter must be secured from a peer group, union or management organization. For the motion picture and television industry positions, letters must be secured from both the appropriate union and management group. If no union exists for a specific industry, letters from experts in the field may attest to a person’s extraordinary ability. These letters must describe the person’s abilities and state whether the work to be undertaken in the U.S. requires a person of extraordinary ability.
Step Two: Filing the O-1 Petition with the U.S. Citizenship and Immigration
Services
The prospective O-1 employer files a Form I-129, O Supplement, Consultation Letter(s), all supporting evidence and the appropriate filing fees with the U.S. Citizenship and Immigration Services (USCIS) service center having jurisdiction over the location where the prospective O-1 employee will work. An O-1 petition may be filed up to one year prior to the commencement date of the contemplated O-1 employment.
If the prospective O-1 employee has a spouse and/or unmarried children under the age of 21-years old legally in the United States, a Form I-539 is filed at the same time to request his/her status be changed to O-3.
One to two weeks after filing the O-1 petition, the USCIS issues a Form I-797, Notice of Action Receipt Notice as proof of receiving the O-1 petition. The notice contains the O-1 petition case number and information from the Form I-129 to identify the specific O-1 petition.
The time the USCIS takes to process an O-1 petition varies between the service centers, but generally takes several months. The time it takes to process the O-1 petition can be reduced to fifteen calendar days by requesting Premium Processing of the petition.
It is possible to view the latest processing times at each service center to track the progress of an O-1 petition. Further, it is possible to track the status of a specific case by visiting the USCIS Case Status Online web page.
Upon approval of the O-1 petition, the USCIS issues a Form I-797 Notice of Action Approval Notice. The bottom portion of the Approval Notice contains a new Form I-94 card showing the status has been changed to O-1 and O-3 for any family members and the validity period of the new O-1 and O-3 status.
The issuance of a Form I-797 Approval Notice authorizing the change of status to O-1 also authorizes O-1 employment. However, it does not enable a person to depart and freely re-enter the United States. Under these circumstances, the O-1 employee and O-3 family members are required to apply for an O-1 and O-3 visa at an overseas U.S. embassy or consulate.
Other General Rules
Departure from the United States After Filing Change of Status
If a person files a change of status application to O-1 and departs the United States prior to approval of the change of status application, the change of status application is deemed abandoned. However, this does not mean the O-1 petition will not be approved. After approval of the O-1 petition, the prospective O-1 employee must apply for an O-1 visa at an overseas U.S. embassy or consulate and re-enter the United States to commence employment.
O-1 petitions can be filed by employers, U.S. sponsors, established U.S. agents or foreign employers through U.S. agents. If there are multiple locations where the O-1 will perform, an itinerary of the events must be provided. If the itinerary contemplates multiple employers, each employer can file an O-1 petition.
