International Office - O-1 Alien of Demonstrated Extraordinary Ability

The International Office (IO) designed this information to provide the Duke community a very general overview of the O-1 classification. We do not intend for this or the O-1 request packet to be a “do-it-yourself” tool. The IO believes it is important to convey to departments some of the essential elements and responsibilities of the O-1 classification.

WHAT IS THE O-1 CLASSIFICATION? O-1 classification is for those who have extraordinary ability in their academic field “demonstrated by national or international acclaim recognized in the field through extensive documentation” requested to work for specific employer for a specifically prescribed project/program. “Extraordinary ability” is defined as a “level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor.” [8 CFR 214.2(o)(3)(II)] This must be established to the satisfaction of the U.S. Department of Homeland Security (DHS) through a variety of documentation as briefly described later in this information and requested with more detail in the O-1 request packet. Perhaps the most important of requirements is the consultation with an appropriate peer group.

WHAT IS THE ‘PEER GROUP CONSULTATION’ REQUIREMENT? Perhaps the most vital component of the O-1 petition is the consultation with an appropriate peer group regarding the nature of the proposed work and the scholar’s qualifications. “Peer group” means a group/organization comprised of practitioners of the scholar’s professional occupation. The consultation must consist of a written advisory opinion clearly identifying the scholar as one of extraordinary ability at the very top of his/her field, even among his/her peers -- it must contain specific statements of fact to support its conclusion. The consultation is NOT binding on DHS but is subject to verification; false or misleading statements can result in severe penalties including fines and imprisonment. Additional provisions must be adhered to in the case of O-1 petitions for Artists and Entertainers; more specific requirements are mandated for those affiliated with Motion Picture and Television Production.

What Additional types of Documentary Evidence ARE REQUIRED FOR THE o-1?
In addition to the Peer Group Consultation, there must be additional documentary evidence that the scholar is recognized internationally as being of “extraordinary ability” in the field of specialization. Such evidence MUST consist of multiple items in AT LEAST 3 of the following categories:

4 to 8 Letters of Support from senior people in the field of specialization attesting to the scholars’ “demonstrated extraordinary ability”, highlighting significant contributions to and international reputation in the field. Some of these letters should be from people outside Duke University and outside the U.S., as well as from senior people in U.S. government and industry. Do NOT obtain letters based upon this O-1 overview.
Documentation of receipt of major international prizes or awards for outstanding achievement in the academic field. Evidence of the nature and criterion of the award must be included.
Documentation of membership in associations in the academic field which require outstanding achievements of their members. Evidence of the nature and criterion of the membership must be included.
Published material written by others in professional publications about the scholars’ work in the academic field.
Evidence of participation as the judge of the work of others, either individually or on a panel, in the same, or an allied, academic field.
Evidence of the scholar’s original scientific or scholarly research contributions to the academic field.
Evidence of the scholar’s authorship of scholarly books or articles in scholarly journals with international circulation in the academic field.

IMPORTANT NOTE :Merely submitting the minimum amount of documentation does NOT mean the O-1 will be approved. The O-1 petition is reviewed very subjectively by DHS. The International Office is very experienced in filing these petitions and strongly recommends submitting more documentation as opposed to the implied minimum required. The more categories and appropriate items in each that are provided, the better the chances of success. However, submission of one or more items that are not appropriate for a category may jeopardize the entire application. If an application appears too weak on its face, Duke will not file the petition.

WHAT IS THE ROLE OF THE DEPARTMENT, THE SCHOLAR AND THE IO? The O-1 is an employment-based petition. What this means is that Duke is the employer and, thus, the petitioner. The scholar is the beneficiary of the petition. This means that the scholars’ legal status in the U.S. is contingent on *BOTH* [1] the Duke department maintaining its agreement as set forth in the petition to DHS *AND* [2] the scholar maintaining satisfactory employment per the same terms. The IO is the authorized office to advise and file petitions on behalf of Duke with U.S. DHS and, therefore, works with the employing department in order to secure employment – Duke policy does NOT permit individuals or departments to retain outside counsel to represent Duke’s interest. The department/division must designate a contact person who is authorized to discuss the terms of the employment and will be responsible for coordination between the IO and the intended scholar.

WHAT ARE THE TIME LIMITATIONS FOR THE O-1? There is no explicit maximum time limit in the regulations as to how long a scholar may remain in the O-1 classification. However, DHS will only grant O-1 classification for up to three years initially. It is then possible to apply for one-year extensions after the initial O-1 approval, but only so long as the primary purpose for which the scholar was admitted is continuing.

WHAT ARE THE COMPENSATION REQUIREMENTS FOR AN O-1? There are no strict minimum or maximum salary requirements, but it is important to remember that this petition is to benefit a scholar of 'demonstrated extraordinary ability' in his/her professional field. Thus, DHS expects compensation to be paid by Duke to reflect this with regard to standards in the field of specialty for one of such outstanding merit and ability. Substantial increases in compensation (10%) may require a new petition being filed and approved BEFORE any change takes effect.

WHAT ARE SOME OF THE GENERAL CONDITIONS OF EMPLOYMENT AS AN O-1?

Upon the DHS’ authorization, the scholar may enter the U.S. up to 10 days prior to the official start date requested in the O-1 petition – the scholar may NOT work nor be compensated for any time prior to the approval date provided.
The O-1 classification requires an employer-employee relationship; thus, all O-1’s must be employees and can never be on the ‘Withholding Exempt’/’non-compensatory’ payroll while in O-1 classification.
Any extension MUST be received by the DHS BEFORE the current O-1 expiration date. We recommend that a completed O-1 extension packet be submitted to the International Office *at least* 2 to 3 months before the current expiration to ensure sufficient time to prepare and file the extension request with DHS in a timely fashion.
Employment is valid for Duke only; thus, the scholar may receive NO compensation from other organizations or institutions. All compensation MUST come from Duke (e.g., no honorariums, books for services, etc.).
BEFORE beginning employment under the O-1 the scholar must report to the International Office for clearance and I-9 compliance – this compliance is required by law. The scholar will NOT be eligible for work or compensation until s/he reports and will not be eligible for retroactive pay.
If Duke should decide to terminate the employment of the O-1 scholar, the department/division may be required to pay for all reasonable costs of return transportation abroad to the home country. We strongly urge you to consult with either an Assistant Director or Director at the IO should this situation arise BEFORE taking action.
If the scholar should fail or cease to be employed, the department/division must notify the IO immediately in writing citing the exact date of separation. This should include a copy of the scholar's resignation/termination letter and the termination notice. Duke must notify the DHS of its withdraw of the O-1 sponsorship as soon as possible.
Since the O-1 is employment-based, ANY one of the following will likely require a new or amended petition BEFORE taking effect: 1. Promotion or other change in official job title/rank; 2. Substantial changes in job duties/responsibilities; 3. Decrease increase in salary/benefits; 4. Change in location of work.

WHAT ABOUT J’s AND THE TWO-YEAR HOME COUNTRY PHYSICAL PRESENCE REQUIREMENT [212(e)]? Some J classification holders are required to return home for two years before they are eligible for either immigrant visa status (Green Card/Permanent Residence) or an “H” or “L” non-immigrant visa classification. This requirement is typically the result of *EITHER*[1] funding from a government agency, [2] U.S. foreign policy agreements between the scholar’s home government and the U.S. government *AND/OR* [3] the physician engaging in formal graduate medical education. In some cases, waivers are granted by the DHS after a recommendation is first obtained from the U.S. Department of State (DOS) which can often be difficult to obtain. Such waivers are particularly rare for physicians that have engaged in graduate medical education under ECFMG sponsorship. Although this requirement does not generally prohibit an approval of O-1 classification, if the approval of a waiver is not granted, it will require that the scholar and his/her dependents travel abroad (preferably to his/her country of citizenship or legal permanent residence), obtain an “O” visa stamp, and then reenter the U.S. in O-1 status BEFORE the scholar will be eligible for employment. It is also important to remember that this new status does NOT remove, waive, or cancel the two-year requirement. If the scholar is not certain if s/he is subject to this requirement s/he should consult with the J sponsor of the program in which s/he participated or contact the International Office. Additional information regarding the Two-Year Home Country Physical Presence Requirement (HCPPR) can be found on our website by clicking here

WHAT IS THE PROCESSING TIME FOR THE O-1? Upon receipt of ALL documents outlined in Parts I and II of the O-1 request packet, the International Office will evaluate the O-1 petition. If sufficient, the petition will then be filed with the Department of Homeland Security (DHS). It may take 4 to 6 months, and sometimes longer, for the processing of the petition application and the DHS notifying us of their decision. It is possible to elect DHS’ Premium Processing Service for an additional fee. However, the best way to expedite this process is to submit a strong, organized application in a complete and timely fashion to our office. Please remember that the data submitted by the department and scholar MUST stand on its own and will not be returned; the IO is not responsible for mis-documentation on the part of departments, scholars, or the supporters of the scholar.

WHAT ABOUT MY DEPENDENTS? CAN THEY OBTAIN WORK PERMISSION? Dependents of the O-1 can apply for an O-3 visa stamp and/or O-3 immigration status. Dependents are defined as the spouse and unmarried children under the age of 21. O-3 status will NOT permit employment of any kind.

WHAT ABOUT TRAVEL ABROAD? WILL I HAVE TROUBLE GETTING A VISA STAMP OR ENTERING THE UNITED STATES? The O-1 is one of the most preferred immigration classifications. Unlike most other immigration classifications, individuals applying for a visa stamp or entering the U.S. need not prove that s/he intends to return to his/her home country [8 CFR Sec., 214.2 (o)(13)]. It is important that the O-1 carry the following when applying for a visa stamp and entering the U.S..

copy of the I-797 Approval Notice of the O-1 petition with your original sections;
copy of the I-129 petition;
original, currently valid passport.

Please be prepared to provide the following if the officer requests:

copy of your current appointment (re-appointment) letter Note: Do not have a special letter created just for this purpose as they can contain terminology that may mislead or confuse the official reviewing the material);
most recent pay stub (if you are continuing employment with the same employer);
marriage and birth certificates demonstrating any existing relationships to the O-1 principal.

Dependents should be prepared to present copies of the above documentation together with an original passport to apply for an O-3 dependent visa and status when entering the U.S.