Dear Tom,

An O-1 Visa is is for persons having extraordinary ability in the fields of science, education business or athletics. Since your H-1b will be expiring, the O-1 is worth considering. However it is one of the more difficult work visas to obtain.

In order to qualify, an individual must prove that he or she is at the top of their field, and that the position that will be filled requires such a person.

In the Immigration Service regulations 8 CFR 214.2(o)(3)(iii), there is a listing of the criteria or proof that would be necessary to establish that a person is one having extraordinary ability.

If an applicant has received a major, internationally recognized award such as the Nobel Prize, then that would be the only proof necessary.

Individuals who have not achieved Nobel prize winning status can prove extraordinary ability by establishing that they have met the terms of at least three of eight criteria published in the regulations. These criteria include proof of having a high salary, proof of scholarly publications, evidence of having been employed in a critical position for an organization having a distinguished reputation, published material about the applicant, and evidence that the applicant has participated as a judge of the work of others. You can find a full listing of the criteria by checking the above cited regulation through an on-line search engine.

If you are satisfied that you can meet the evidentiary criteria, the next step would be to obtain a peer group support letter that would confirm your extraordinary ability. Such a letter would normally come from a union, if applicable to the employment, or from a group or organization that is comprised of practitioners active in your occupation.

O-1 petitions may be filed using premium processing. You would want to file for the O-1 before your H-1B expires to assure that there will be no gap in employment authorization.

The O-1 petition would need to filed by your employer on your behalf. Your employer should be sure to retain a lawyer to analyze the chances for success and to process the application if the decision is to seek the O-1.

If you qualify for the O-1, your time spent in the H-1B classification will not be a problem.

Sincerely,

Peter Baumann