The United States recognizes the tremendous value that foreign nationals with extraordinary abilities offer to our country.  In light of that acknowledgment, the United States provides two pathways to live and work here: the EB-1 and O-1 visa. Whether you choose to apply for an EB-1 or an O-1 visa depends upon your qualifications and ultimate goals. If you miss the high bar set for both the EB-1 and O, you may consider a third category based upon your exceptional abilities, the EB-2 National Interest Waiver Program.

What is Extraordinary Ability?

To apply as an individual with extraordinary ability, you must demonstrate the highest levels of achievement in science, art, education, business or athletics. The standard is set very high. You must be more than just superb at your craft. An individual with extraordinary abilities is considered the elite of the elite, a person who has earned sustained national or international acclaim for her or his work.

You must submit documents to prove recognition for your achievements. A single high-level honor might be enough, such as an Olympic medal, an Oscar award, a Nobel prize or a Pulitzer prize. However, most applicants present extensive documentation of a number of impressive honors. Unless you can present a top honor as described above, you must show evidence of at least three of these forms of recognition in your field:

  • Receipt of nationally or internationally recognized prizes or awards for excellence in your field
  • Membership in a trade association that requires outstanding achievement for admission
  • Published material in major media or trade journals that covers your professional attainments
  • Your invite to judge the work of others in your craft
  • Your significant original contributions to science, academia, the arts, sports or business
  • Authorship of scholarly articles in professional journals, major trade publications or other major media
  • Exhibition or display of your work
  • Your leading or critical role in a distinguished organization
  • The high salary or other remuneration you command for your work in the field
  • Commercial successes in the performing arts

Why Choose an EB-1 Visa?

The EB-1 is the first-preference employment-based visa, broken down into 3 sub-categories:

  • EB-1A: for foreign nationals who can demonstrate that they have extraordinary ability
  • EB-1B: for outstanding researchers and professors
  • EB-1C: for multinational executives and managers

You may choose to apply for the EB-1 if you plan on immigrating to the United States permanently. To apply, you submit form I-140, Petition for Alien Worker, and attach as much evidence as possible regarding your extraordinary abilities. You do not need a job offer or DOL labor certification, as you would with other types of employment visas. As the name implies, you are given the first preference in numbers of visas over other types of workers, and so EB-1s do not generally reach the annual limit. In other words, the wait is usually much shorter than that of other green cards. Upon approval, your spouse and unmarried children (under the age of 21) are also granted green cards.

Why Choose the O-1 Extraordinary Ability Visa?

The O-1 visa is a nonimmigrant visa that allows you to work and live in the United States for a period of one to three years, with the opportunity for yearly renewals. You cannot apply for a green card via the O-1 visa. You may consider the O-1 visa if you are participating in a temporary position, project or venture. Unlike the EB-1, an employer must sponsor you for the O-1 visa, and you are limited to working with that employer. Your spouse and unmarried children (under the age of 21) may accompany you on an O-3 visa, but they may not accept employment in the U.S. under that visa category.

Transitioning from O-1 to EB-1

The O-1 visa is duel intent, meaning you can apply for the nonimmigrant visa with the intention of ultimately remaining in the United States. You may therefore consider applying for the O-1 visa to begin working in the country and then apply for the EB-1 while you live and work here under your nonimmigrant visa. Keep in mind that success with an O-1 visa does not guarantee success at the EB-1 level.

Do you excel in your field? Wondering if the EB-1 or O-1 visa is right for you? While the criteria for the O-1 and EB-1 visas may seem similar, they have different guidelines for acceptance. It is important to evaluate your goals and options with an expert. Talk to an immigration attorney today.

*The content and materials available via Ask Ellis are for informational purposes only and do not constitute legal advice.

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