What is an O-1?
The O-1 is a non-immigrant status that is employment based. It is designated for individuals coming temporarily to the U.S. who are of extraordinary ability who are coming to work for a specific employer.
The United States Citizenship & Immigration Services (USCIS) decides whether an individual qualifies for O-1 classification. The O-1 status is employer specific, which means that a USCIS approved petition submitted by UW-Madison allows the individual to work only in the position specified in the petition filed by UW-Madison. An individual who has an O-1 approval from another employer is not eligible to work at UW-Madison. An O-1 visa holder may work for more than one employer, but each employer must file a separate visa petition.
How long can I hold O-1 status?
You can hold O-1 status indefinitely. There is no maximum number of years that you can remain in O-1 status. O-1 petitions are initially valid for up to 3 years and may be extended one year at a time every year.
Who is eligible?
At a university, someone qualified for an O-1 is an individual of extraordinary ability who has achieved and sustained national or international acclaim for extraordinary ability in the sciences, arts, education, business or athletics. Only those individuals who have risen to the very top of their field qualify for O-1. They must be able to demonstrate sustained national or international acclaim, and recognition for achievements in their field of expertise.
Who is not eligible?
The O-1 is not appropriate for visitors, unpaid positions, degree-seeking students, or training positions.
Individuals receiving fellowship income are not subject to income and FICA tax withholding as they are being provided funding to aid in the pursuit of study or research. Since this is not considered remuneration for services being provided to the University, they are not eligible for O-1 visa status.
Advantages of the O-1
There are 3 instances when the O-1 may be beneficial.
- If an employee is nearing the end of the six (6) years in H-1B status and (1) has not started the permanent residence process, or (2) is not far enough along in the permanent residency process to qualify an H-1B extension exception or apply for an Employment Authorization Document), the O-1 is an option for those who appear to qualify.
- If a J-1 exchange visitor is subject to the two year home residence requirement, and the individual qualifies for an O-1, the University may be able to apply for the O-1. The employee may not change status to the O-1 in the U.S., but can apply for an O-1 visa at a U.S. consulate outside the U.S. and re-enter with the O-1 visa after the O-1 petition is approved.
- Medical doctors who obtained their M.D. degree outside the U.S. who are eligible for a Wisconsin visiting professor license but who have not passed the required qualifying medical exams (USMLEs) for H-1B status, may also obtain O-1 status if they qualify.
Spouses and unmarried children under the age of 21 of O-1 visa holders are considered dependents and are eligible for O-3 status.
O-3s are not eligible for employment under any circumstances. However, O-3 visa holders may attend school full time.
O-1s may enter the U.S. up to ten days before the start date of employment, and may remain in the U.S. for up to ten days after the end of employment, if their current I-94 grants an additional 10 days.
You cannot work or “volunteer” to work during the grace period.
How do I request O-1 status?
The sponsoring UW Department initiates the request to sponsor an O-1, once it is determined whether or not the position is eligible for sponsorship and that the foreign national meets all eligibility requirements for the position and status.