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Can I Obtain 1 Year or 3 Years When Renewing My O-1 Visa If I Will Continue to Work for the Same Employer in the Same Position? What is an O-1 Visa Extension?

By November 19, 2019May 20th, 2021Extraordinary Ability, Immigration
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The O-1 nonimmigrant visa is for individuals who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who have a demonstrated record of extraordinary achievement in the motion picture or television industry and have been recognized nationally or internationally for those achievements. For more information about O-1 petitions, please click here.

 I have an O-1 Visa and would like to keep working in the U.S. How Can I Extend My O-1 Visa?

Yes.  If you are on an O-1 visa and you would like to continue working in the U.S., your agent or employer can file a request to extend the validity of your original O-1 petition to allow you to continue or complete the same activities or events specified in the original petition. Supporting documents are not required unless requested, but your agent or employer must provide a statement explaining the reasons for the extension. Extensions may be authorized in for a period of 1 year to allow the O-1 beneficiary to continue or complete the same event or activity that was part of the initial O-1 petition.

Since O-1 beneficiaries can obtain up to three years on an initial petition, the question many ask when coming to file a second (or third, fourth, etc…) O-1 petition is: how long can I renew my O-1 for? Am I limited to an extension of 1 year only, or is there a way to get another 3 years in O-1 status?

If your current O-1 validity period is about to end and you are looking to renew your O-1 petition with the SAME employer in the SAME position, you may be under the impression that you can only extend your O-1 status by 1 year. In short, it is often possible to extend your O-1 status for another 3 years, even if you are renewing your O-1 status through the same employer or agent.

How Long Can I Renew My Subsequent O-1 with My Employer After the Initial 3 Year Validity Period Has Expired?  What is the Difference between an Extension and a Renewal?

An O-1 extension application is essentially one where the beneficiary’s original O-1 validity period ends up being an insufficient period of time to ‘continue or complete the same activities or events specified in the original petition’. If you are extending your O-1 status in order to continue or complete the same set of activities and events under the original employment contract contained in the original filing, you will be limited to a maximum of 1 year extensions, however there is no limit on how many times you can file the extension.

For a renewal, you are asking for an O-1 approval based on new events or activities.  This means that if you have fulfilled your employment contract and have completed all of the events and activities contained in the itinerary included in the original petition, you would be able to file your O-1 renewal as a new filing with a new employment contract (which qualifies as a “new event”) with a new set of terms and conditions, along with a completely new set of activities and events  within an entirely new itinerary. The difference between the two can at times cause confusion.

Continuing employment with the same employer in the same position extending beyond the initial 3 year validity period is not considered to be an extension of the original petition, but rather, constitutes a new filing that can be granted up to a the maximum 3-year validity period.

In practice, however, it is possible that USCIS can reject this approach and grant only one year in O-1 status. We have seen some cases that were granted for 1 year, but many renewal cases have been granted the full 3 years for cases filed under the same petitioner in the same position so long as it is made clear that the filing constitutes a set of new activities and events under a new employment contract along with the necessary supporting evidence.

Renewing for 3 Years in Agent-Petitioned Cases (except for cases involving agents who are acting as full-time employers)

An O-1 artist can be sponsored by a U.S. employer, U.S. agent, or a foreign employer through a U.S. agent. Although the artist cannot petition for him/herself for O-1 status, the regulations recognize that O-1 cases can involve workers who are traditionally self-employed.  The US agent may be (1) the beneficiary’s employer (2) a representative of both the beneficiary and other (multiple) employers (3) someone performing the functions of an employer or (4) acting on behalf of both the employers or entities requiring the beneficiary. An additional (but less common) instance involves foreign employers, where an agent is acting on behalf of a foreign employer or someone the employer has authorized to act on its behalf.

For agent-petitioned cases, it is fairly easy to designate a new person who is willing and able to serve as your appointed agent for the purpose of the O-1 filing. As such, you may choose to change different agents every three years in order to be granted the full 3 years. Although it is also possible to request 3 more years in O-1 status with the same agent, it is simply easier to find a different agent in order to avoid any potential issues related to USCIS deciding that you should only be granted a one year extension since the same agent is filing the case for you.

Furthermore, USCIS has drastically shifted its policies and practices concerning extension cases, and no longer is a mere ‘statement explaining the reasons for the extension’ sufficient. As of October 23, 2017, USCIS no longer gives deference to prior O-1 petitions when adjudicating O-1 extensions and must apply the same level of scrutiny to an O-1 petition extension as it would to a brand new O-1 petition. Under the new policy, the same level of scrutiny will be applied even where the petitioner, beneficiary, and underlying facts are unchanged from a previously approved petition. While adjudicators may ultimately reach the same conclusion as in a prior decision, they are not compelled to do so as a default starting point. The burden of proof to establish eligibility for an immigration benefit always lies with the petitioner.

When requesting a 3-year renewal based on a “new event,” you would provide new contracts, deal memos, and itinerary.

As such, even extension cases should be considered new filings and therefore, evidence related to establishing the beneficiary’s extraordinary ability should be re-submitted in full in an extension case.

Final Tips

Filing the renewal O-1 petition via consular notification can further increase your chances of obtaining the full 3 year approval, especially if there is a considerable gap since your previous O-1’s validity end date. It is a strategic choice that you may want to discuss with your lawyer, and you should ensure that you are properly advised about consular trends in adjudicating the O-1 and which consulates you should avoid. In all cases, you should plan and prepare well ahead of your current O-1 status is set to expire. Strategic planning and tactical preparation go a long way to ensure that you maximize your chances of success in obtaining the O-1.

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