Overview of the O and P Visas for Athletes or Individuals with Extraordinary Ability

immigration law attorneysimmigration articlesimmigration news

The O-1 visa and the P-1 visa are similar nonimmigrant visas in that they both are available for individuals who are recognized as operating at a very high level within their field. However, significant differences between these visas will make one more appropriate than the other in most cases.

O-1 Visa – Individuals with Extraordinary Ability or Achievement

The O-1 visa is a nonimmigrant, or temporary, visa for an individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.

Basic Requirements

To qualify for an O-1 visa, the foreign national must demonstrate extraordinary ability by sustained national or international acclaim, and must be coming temporarily to the United States to continue work in the area of extraordinary ability.

Extraordinary ability in the fields of science, education, business, or athletics means a level of expertise demonstrating that the person is one of the small percentage who has risen to the very top of the field of endeavor.

Extraordinary ability in the field of arts means distinction. Distinction means a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.

Finally, to qualify for an O-1 visa in the motion picture or television industry, the foreign national must demonstrate extraordinary achievement evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable, or leading in the motion picture or television field.

Evidentiary Criteria for the O-1 Visa in the Fields of Science, Education, Business or Athletics

To establish extraordinary ability in the fields of science, education, business or athletics, the foreign national must submit evidence of the receipt of a major, internationally-recognized award, such as a Nobel Prize.

In the absence of such a major prize, the foreign national must submit evidence that at least three of the following criteria are met:

  • Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor.
  • Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field.
  • Published material in professional or major trade publications, newspapers, or other major media about the foreign national and the foreign national’s work in the field for which classification is sought.
  • Original scientific, scholarly, or business-related contributions of major significance in the field.
  • Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought.
  • A high salary or other remuneration for services as evidenced by contracts or other reliable evidence.
  • Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought.
  • Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.

If the above criteria do not readily apply to the foreign national’s occupation, comparable evidence may be submitted.

Evidentiary Criteria for the O-1 Visa in the Arts or Motion Picture or Television Industry

To establish extraordinary ability in the arts or the motion picture or television industry, the foreign national must submit evidence that he or she has received, or been nominated for, significant national or international awards or prizes in the particular field, such as an Academy Award, Emmy, Grammy, or Director’s Guild Award.

In the absence of such a major award or nomination, evidence must be submitted demonstrating the foreign national satisfies at least three of the following criteria:

  • 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 releases, publications, contracts, or endorsements.
  • Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the foreign national in major newspapers, trade journals, magazines, or other publications.
  • Performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials.
  • A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating, or standing in the field, box office receipts, motion picture or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications.
  • Received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field, with the testimonials clearly indicating the author’s authority, expertise, and knowledge of the foreign national’s achievements.
  • A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence.

If the foreign national is applying in the category of extraordinary ability in the arts, and if the above criteria do not readily apply to the foreign national’s occupation, comparable evidence may be submitted. This “comparable evidence” alternative is not available when the foreign national is applying in the category of extraordinary ability in the motion picture or television industry.

O-1 Visa Process

To obtain O-1 visa status, an I-129 Petition for Nonimmigrant Worker must be submitted to United States Citizenship and Immigration Services (USCIS). The petition may not be submitted by the foreign national. The petition must be filed by the foreign national’s prospective employer in the U.S., or by an “agent” in the U.S. The agent may be any individual or entity that is authorized by the prospective employer to act on its behalf. Also, if the foreign national is engaged in an occupation that typically requires self-employment as opposed to an employer-employee relationship, an agent could act on behalf of the foreign national and serve as the petitioner.

If the foreign national will be working in more than one location, an itinerary identifying each worksite must be included with the petition.

In addition, along with the I-129 petition, a consultation from an appropriate labor organization for the field of endeavor must be submitted. The consultation must describe the work or services to be performed in the U.S. and the foreign national’s qualifications for the work.

The petition may be filed up to one year in advance of the need for the individual to be in the U.S. USCIS typically takes one to two months to process the petition.

Period of Stay

USCIS may approve an initial petition for O-1 status for up to three years, but no longer than is necessary to complete the event or engagement in the U.S. If necessary, extensions may be granted in one year increments, for as long as necessary to accomplish the initial event or activity.

Dependents of O Visa Holders

The spouse and children under the age of 21 of a foreign national in O-1 status may obtain an O-3 visa and join the O-1 visa holder in the U.S. The O-3 visa holder will receive the same period of admission and limitations as the spouse/parent, unless the child will reach the age of 21 during this period. In that case, the O-3 validity period will end upon the child’s 21st birthday.

O-3 visa holders may not work in the U.S., but they may engage in full or part time study.

P-1 Visa – Athletes, Athletic Teams, and Entertainment Groups

The P-1A visa classification is available for foreign nationals coming to the U.S. temporarily to perform at a specific athletic competition as an athlete, individually or as part of a group or team, at an internationally recognized level of performance. The P-1A visa is available either for individual athletes who are internationally recognized with a high level of achievement, or for entire athletic teams if the team has achieved significant international recognition in the sport.

The eligibility standard for P-1A athletes is lower than the standard required to obtain O-1 status as an athlete. Athletes under contract with both major and minor league teams are generally eligible for P-1A status, even if the individual athlete could not establish that he or she is already internationally recognized, as would be required in the O-1 category.

Eligibility for P-1A Status

To establish eligibility for P-1A status, the individual athlete or team must present evidence that at least two of the following criteria are satisfied:

  • Evidence of having participated to a significant extent in a prior season with a major U.S. sports league.
  • Evidence of having participated to a significant extent in international competition with a national team.
  • Evidence of having participated to a significant extent in a prior season for a U.S. college or university in intercollegiate competition.
  • A written statement from an official of a major U.S. sports league or an official of the governing body of the sport which details how the athlete or team is internationally recognized.
  • A written statement from a member of the sports media or a recognized expert in the sport which details how the athlete or team is internationally recognized.
  • Evidence that the athlete or team is ranked, if the sport has international rankings.
  • Evidence that the athlete or team has received a significant honor or award in the sport.

P-1A Visa Process

Similar to the O visa process, an I-129 Petition for Nonimmigrant Worker must be submitted to USCIS. The petition may not be submitted by the foreign national. The petition must be filed by the foreign national’s prospective employer in the U.S., or by an “agent” in the U.S. The agent may be any individual or entity that is authorized by the employer, or by a group of employers, to act on its or their behalf.

Along with the I-129 petition, a consultation from an appropriate labor organization for the field of endeavor must be submitted. The consultation must describe the work or services to be performed in the United States and the foreign national athlete’s or the foreign team’s qualifications for the work.

The petition may be filed up to one year in advance of the need for the foreign individual or group to be in the U.S. USCIS typically takes one to two months to process the petition.

Period of Stay for P-1A Visa Holders

An individual athlete may obtain an initial P-1A visa for the time needed to complete the event, competition or performance, but no more than five years. The athlete may obtain an extension in increments of up to five years in order to continue or complete the event, competition or performance. The total amount of time an individual may be present in the U.S. in P-1A status is ten years.

An athletic team may obtain initial P-1A visas for the time needed to complete the event, competition or performance, but no more than one year. The team may obtain an extension in increments of up to five years to continue or complete the event, competition, or performance. The total amount of time athletes who are part of a P-1A team may be present in the U.S. in P-1A status is ten years.

Essential Support Personnel

Essential Support Personnel who are an integral part of the performance of a P-1A athletic team, such as coaches, scouts, and trainers, and who perform support services which cannot be readily performed by a U.S. worker, are also eligible for P-1A classification.

A separate I-129 petition for support personnel would need to be submitted in addition to the petition filed for the team. Their authorized period of stay in the U.S. is typically tied to the team’s.

P-1B Status for Entertainers

A foreign national who belongs to an internationally recognized entertainment group may obtain P-1B status to perform in the U.S. To qualify for this visa status, each member of the group must have had a sustained and substantial relationship with the group for at least one year, with some limited exceptions. The group, but not the individual members, must be internationally recognized.

To satisfy the international recognition requirement, the group must show that it has a high level of achievement in its field as evidenced by a degree of skill and recognition substantially above that ordinarily encountered. The reputation of the group, not the individual achievements of its members or the acclaim of a particular production, is essential.

Circus performers and essential circus personnel are exempt from the one year requirement and the “internationally recognized” requirement. However, the individuals must be coming to the U.S. to join a nationally recognized circus.

Eligibility for P-1B Status

To be eligible for P-1B status as an entertainment group, evidence must be submitted to USCIS establishing that the group has been internationally recognized as outstanding in the discipline for a sustained and substantial period of time, as demonstrated by evidence of the group’s receipt of, or nomination for, significant international awards or prizes for outstanding achievement in the field. Alternatively, the group may present evidence that it meets at least three of the following criteria:

  • The group has performed and will perform as a starring or leading entertainment group in productions or events that have a distinguished reputation, as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements.
  • The group has achieved international recognition and acclaim for outstanding achievement in its field, as evidenced by reviews in major newspapers, trade journals, magazines, or other published material.
  • The group has performed and will perform services as a leading or starring group for organizations and establishments that have a distinguished reputation, as evidenced by articles in newspapers, trade journals, publications, or testimonials.
  • The group has a record of major commercial or critically acclaimed successes, as evidenced by indicators such as ratings, box office receipts, record, cassette, or video sales, and other achievements as reported in trade journals, major newspapers, or other publications.
  • The group has received significant recognition for achievements from critics, organizations, government agencies, or other recognized experts in the field.
  • The group has commanded and will command a high salary or other substantial remuneration for services comparable to others similarly situated in the field, as evidenced by contracts or other reliable evidence.

P-1B Visa Process

Similar to the application processes described above, an I-129 Petition for Nonimmigrant Worker must be submitted to USCIS. The petition may not be submitted by the foreign national. The petition must be filed by the foreign national’s prospective employer in the U.S., or by an “agent” in the U.S. The agent may be any individual or entity that is authorized by the employer, or by a group of employers, to act on its or their behalf.

Along with the I-129 petition, a consultation must be submitted from an appropriate labor organization regarding the nature of the work to be done, or a statement from the labor organization proving that the group has been established and performing regularly for a period of at least one year.

The petition may be filed up to one year in advance of the need for the foreign individual to be in the U.S. USCIS typically takes one to two months to process the petition.

Essential Support Personnel

Essential Support Personnel who are an integral part of the performance of a P-1B entertainment group, such as front office personnel, camera operators, lighting technicians, and stage personnel, and who perform support services which cannot be readily performed by a U.S. worker, are also eligible for P-1B classification.

A separate I-129 petition for support personnel would need to be submitted, in addition to the petition filed for the group. Their authorized period of stay in the U.S. is typically tied to the entertainment group’s.

Period of Stay for P-1B Visa Holders

An entertainer may be admitted to the U.S. for the time needed to complete the event, competition, or performance, but no more than one year. The entertainer may receive extensions of P-1B status in one year increments in order to continue or complete the event, competition or performance.

Dependents of All P Visa Holders

The spouse and children under the age of 21 of a foreign national in P-1 status may obtain P-4 visas and join the P-1 visa holder in the U.S. The P-4 visa holder will receive the same period of admission and limitations as the spouse/parent, unless the child will reach the age of 21 during this period. In that case, the P-4 validity period will end upon the child’s 21st birthday.

P-4 visa holders may not work in the U.S., but they may engage in full or part time study.

Helpful Articles

Call Our Clayton or O’Fallon Law Offices

Whether you are a visitor, hosting a visitor, or hoping to attain permanent resident status, our law firm has the dedicated professionalism and personal service that can make a difference. We serve clients from around the world with honest answers to your questions and thorough explanations of your options.

Contact the St. Louis immigration attorneys at Paule, Camazine & Blumenthal, P.C. at 314-727-2266. If an evening or weekend appointment is necessary, we will adjust our schedules to fit yours.

Immigration & Naturalization Attorneys

Peter A. Gianino

Melissa G. Nolan

Immigration & Naturalization Law Articles

Melissa Nolan St. Louis Immigration Attorney

L-1 Visa Status Overview

| Articles, Immigration | No Comments
By: Melissa G. Nolan The L-1 visa category permits a foreign company to transfer a foreign employee to a related…
Melissa Nolan St. Louis Immigration Attorney

How does a divorce affect my U.S. immigration status? (Part 2 of 3)

| Immigration, Melissa Nolan Featured | No Comments
By Paule, Camazine & Blumenthal, P.C. of Paule, Camazine & Blumenthal, P.C. posted in Immigration on Tuesday, July 31, 2012; updated December…
Melissa Nolan St. Louis Immigration Attorney

Comparison of Investor Visa Options

| Articles, Immigration | No Comments
By: Melissa G. Nolan EB-5 IMMIGRANT INVESTOR E-2 NONIMMIGRANT VISA L-1 INTERCOMPANY TRANSFEREE Who is eligible to apply for the…