O-1 Visa: The secret weapon for top personnel transfers
Imagine that you want to send an employee for several years to the USA, but your colleague is a foreigner and works for you for less than 12 months. Or perhaps your company plans to hire someone from outside the firm for a US assignment.
How does it work?
In this scenario, which is quite common in the business world, you often only have the H-1 B visa as an option. You cannot apply for an E visa because your employee must have the same nationality as your company to qualify. And an L-1 visa is not an alternative, as it requires proof of at least 1 year of employment in one of your offices outside of the USA. So that leaves only the H-1B: A work permit, which is subject to great restrictions. First, there is an annual cap on the number of visas that can be issued, which is quickly exhausted, usually within 3 to 4 months. And the cap can further decreased at any time if the US government so decides. On the other hand, H-1B holders can be replaced at any time by US citizens, which will not happen with E or L-1 employers, who generally intend to have a long-term employment relationship with the employees they have sponsored. For these reasons it unattractive for staff deployment, which is why it is mostly used by US companies rather than branches of foreign companies.
Individuals with extraordinary skills or achievements
The O-1 Non-Immigrant Visa has been created for individuals with exceptional skills in the sciences, arts, education, business or athletics.
It is sub-divided into:
O-1A: People with exceptional ability in the areas of science, education, business or athletics.
O-3: Spouses or children of O-1A visa holders.
General admission criteria
In order to qualify for an O-1 visa, the applicant must demonstrate that he has exceptional skills in his profession and that he is recognized nationally or internationally. In addition, it must be proven that he wants to use these skills in the United States.
This makes the O-1A ideal for middle and upper management. For example, for the posting of members of corporate boards, managing directors, department heads or other management personnel with management responsibility (list not exhaustive).
Consultation
In order to be able to determine whether the employee qualifies for the purposes of the O-1, it is advisable to have a preliminary examination of his education and professional standing carried out by a suitable US institution (“peer group”). When they exist, these are usually connected with the professional or trade association in that field or industry, and will issue review of the employee’s professional qualifications. Where there is no peer group organization, letters of recommendation from suitable reviewers can serve in place of a trade group review. In the field of business, these are usually recognized professors at universities / colleges who have expertise as O-1 reviewers. If these reports are positive, it can be assumed that the chances of obtaining an O-1A visa will increase significantly. In any case, these documents will be used for the official application.
The obligation to consult can be deviated from if it can be proven that no suitable professional organization exists in the USA. However, it is still good for technical reasons to obtain other reviews such as expert opinions from the United States. Otherwise, the US authority will have to decide solely on the basis of existing documents such as certificates, diplomas, and references, which may be a disadvantage, as there is no evaluation by US experts.
O-1A application procedure:
There are two steps in the process:
– First apply to the US immigration office in the USA
– Then apply for the issuance of an 0-1A visa at the US Embassy on the basis of authorization from the US immigration office
In addition to the standard documents such as employment contract, curriculum vitae and the report (s) from the consultation procedure, the application should include documents such as diplomas, certificates, a curriculum vitae, letters of reference from home and abroad from former employers or persons from the professional environment, which emphasize the value of the applicant’s professional background and achievements.
Verification criteria for O-1A (excerpt)
– Membership of professional associations requiring a professional status
– Publications in newspapers or other relevant media about the beneficiary and his work
– Copies of articles in journals or other important media in the field
– A high salary or other remuneration for services, as evidenced by work contracts or other reliable evidence
– Proof of membership in a panel or the role of individual juror related to the assessment of others in the same or related field
If the above criteria are not readily applicable, it is also permitted to provide comparable evidence to qualify for the O-1A category.
Length of stay
The O-1A status is initially granted for a maximum of 3 years. It can be extended by 1 year, and theoretically there is no upper limit to how many times it can be extended. However, it must be proven in each case that the use of the employee in the US company is still necessary. There is no need for a second consultation as in the first application.
Family of an O-1A holder
Family members (spouses and children under the age of 21 who wish to accompany the O-1A holder to the US can do so with an O-3 visa.) They are not allowed to work in the United States, but can study, for example.