< back

 

EXTRAORDINARY ABILITY VISAS AVAILABLE TO DOCTORS, PROFESSORS AND RESEARCHERS PART I – NON-IMMIGRANT VISAS
Foreigner health care professionals of extraordinary ability have a number of immigrant and non-immigrant options available to them. They enjoy preferences both in the immigrant visa categories and the non-immigrant visa categories. These visas may be granted to medical doctors, researchers, professors, as well as other non-clinical healthcare professionals.  
The extraordinary ability non-immigrant visa category is the O-1 visa, while the extraordinary ability immigrant visa category is the EB-1 or EB-2. First we will discuss the O-1 non-immigrant visa, and then we will move to discuss the immigrant visas. 
O-1 Non-Immigrant Visa 
The O-1 visa is a temporary work visa available to those foreign nationals who have “extraordinary ability in the sciences, arts, education, business or athletics” which “have been demonstrated by sustained national or international acclaim”.  Medical Doctors, researchers or professors of extraordinary ability may be eligible for an O-1 visa. The person entering the US must be coming to work in their field of ability, but the position need not require the services of a person of extraordinary ability.  
Extraordinary Ability in Science or Education 
To obtain an O-1 visa to work in the sciences or education applicants must demonstrate that they possess “a level of expertise indicating that the person is one of the small percentage who have risen to the top of the field of endeavor.”  There are two ways to demonstrating this expertise.  One method is through receiving a major internationally recognized award such as a Nobel Prize.  Obviously, most people cannot meet this test. The more common method is to provide documentation in three of the following categories: 
Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor 
Membership in associations in the field which require outstanding achievements of their members 
Published material about the alien 
Participation as a judge of the work of others in the same or allied fields 
Evidence of original contributions of significance in the field 
Authorship of scholarly articles 
Evidence of employment in a critical or essential capacity for organizations with a distinguished reputation 
Evidence that the alien has or will command a high salary 
Comparable evidence that does not fit within these categories may also be submitted. 
For non-clinical healthcare professionals, such as researchers or professors, published materials or evidence of contribution to science will be sufficient evidence. 
Consultation Requirement 
Before a person will be granted an O-1 visa, the INS requires a consultation with a US-based organization.  
The O-1 petition must include an advisory opinion from a peer group, labor union, or person with expertise in the applicant’s field.  This opinion can either state simply that the group has no objection to issuing the visa, or can detail the applicant’s achievements.  If the achievements are detailed, the letter should also address the applicant’s ability, the nature of the position offered, and whether the position requires a person of extraordinary ability.  The consultation may be written by a fellow professor, a renowned scientist in the field, etc. 
If the consultation is with an organization other than a labor union, the INS will forward the application to the union it deems appropriate within five days of receiving the petition.  The union must issue an opinion on the petition within 15 days, and then the INS has two weeks to rule on the application.  
In case where there are no appropriate peer groups available in a given field, the INS will normally make a decision without a peer group consultation. In these cases, other documentation such as support letters from colleagues is required. 
In cases where a previous O-1 petition was approved for the applicant, a second consultation is not required if he or she is filing for an O-1 extension or amendment. 
Applying for an O-1 Visa 
The form for petitioning for an O visa is the I-129.  This must be submitted along with the consultation opinion, evidence documenting the alien’s extraordinary ability, and details of the proposed work in the US.  The petition is to be approved for the duration of the event in which the alien will participate, for a maximum of three years. 
An O visa may be extended in one-year increments for an indefinite period of time.  Form I-129 is also used to file for an extension.  The application for an extension does not need to include a consultation and requires only a statement of why the extension is sought.  
As all other non-immigrants, O-1 applicants require a sponsor to petition on their behalf to the INS. Acceptable O-1 petitioners include US firms, foreign employers, hospitals, research facilities, universities, etc. Before changing the authorized employment, the O-1 applicant must file an amendment with the INS and receive its approval. 
Finally, O visas are what are known as “dual intent visas”, meaning that even though the applicant has filed a labor certification or petition for classification as a preference worker leading to permanent residence, the O visa cannot be denied.  
Many physicians choose to use the O category after being in J-1 status at the end of their residency, since that is the only work category available to them immediately, without having to obtain a waiver first. 
< Back | Next >
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.