Chapter 9 - Admission, Extension of Stay, Change of Status, and Change of Employer
A. Admission
If approved for classification as an O nonimmigrant and found otherwise admissible, a beneficiary may be admitted for a period determined to be necessary to accomplish the event or activity, not to exceed 3 years.[1]
Validity Period
If approved after the date the petitioner indicated services would begin, the validity period generally commences with the date of approval. The validity period must not exceed the period determined by USCIS to be necessary to complete the event or activity and must not exceed 3 years.
A beneficiary may be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. The beneficiary may engage in employment only during the validity period of the petition.[2]
Nonimmigrants described in the O classification are "seek[ing] to enter the United States to continue to work in the area of extraordinary ability," and may be authorized for a period of stay necessary "to provide for the event (or events) for which the nonimmigrant is admitted.”[3] The O classification is for a beneficiary coming to the United States "to perform services relating to an event or events."[4]
The O regulations define an event as an activity such as, but not limited to: a scientific project, conference, convention, lecture, series, tour, exhibit, business project, academic year, or engagement.[5] In addition, a job that may not have a specific engagement or project may also fall under this definition if the job is the "activity" within the beneficiary's area of extraordinary ability. Such activities may include short vacations, promotional appearances, and stopovers that are incidental or related to the event. Therefore, the regulations clearly indicate that USCIS may approve a petition to cover not only the actual event or events but also services and activities in connection with the event or events.
There is no statutory or regulatory authority for the proposition that a gap of a certain number of days automatically indicates a “new event,” nor is there a requirement for a "single event.” Rather, the focus is on whether the beneficiary will work in the area of extraordinary ability.[6]
The regulations define the evidentiary standard for identifying the services or activities relating to the event(s) by requiring "an explanation of the nature of the events or activities and a copy of any itinerary for the events or activities."[7] Unlike other nonimmigrant categories that have a specified time limit, a temporal period is not specified for O nonimmigrants. The regulations state that the validity period must be that which is "necessary to accomplish the event or activity, not to exceed 3 years."[8]
If the activities on the itinerary are related in such a way that they could be considered an event, the petition should be approved for the requested validity period. For example, a series of events that involve the same performers and the same or similar performance, such as a tour by a performing artist in venues around the United States, would constitute an event. In another example, if there is a break in between events in the United States and the petitioner indicates the beneficiary will be returning abroad to engage in activities that are incidental or related to the work performed in the United States, it does not necessarily interrupt the original event.
The burden is on the petitioner to demonstrate that the activities listed on the itinerary relate to the event despite gaps in which the beneficiary may travel abroad and return to the United States. Those gaps may include time in which the beneficiary attends seminars, vacations, or travels between engagements.[9] Those gaps would not be considered to interrupt the original event, and the full period of time requested may be granted as the gaps are incidental to the original event. If a review of the itinerary does not establish an event or activity or a series of connected events and activities that would allow the validity period requested, or if the petitioner is requesting a validity period beyond the last established event or activity, the officer may, in his or her discretion, issue a Request for Evidence (RFE). The RFE provides the petitioner an opportunity to provide additional documentation to establish the requested validity period.
Officers evaluate the totality of the evidence submitted under the pertinent statute and regulations to determine if the events and activities on the itinerary are connected in such a way that they would be considered an event for purposes of the validity period. If the evidence establishes that the activities or events are related in such a way that they could be considered an event, the officer approves the petition for the length of the established validity period.
Even though USCIS may consider a group of related activities to be an event, speculative employment or freelancing are not allowed.[10] A petitioner must establish that there are events or activities in the beneficiary's field of extraordinary ability for the validity period requested. Evidence of such events or activities could include an itinerary for a tour, contract or summary of the terms of the oral agreement under which the beneficiary will be employed, or contracts between the beneficiary and employers if an agent is being used.
Maintaining Status
USCIS does not consider a beneficiary in O-1 status to have failed to maintain nonimmigrant status solely because of the cessation of the employment on which the visa classification was based for a period of up to 60 days or until the end of the authorized validity period, whichever is shorter. USCIS may shorten or eliminate this 60-day grace period as a matter of discretion. Unless otherwise authorized under 8 CFR 274a.12, the O-1 beneficiary may not work during such a period.[11]
Although the O-2 accompanying beneficiary must obtain his or her own classification, this classification does not entitle him or her to work separate and apart from the O-1 beneficiary to whom he or she provides support.[12]
B. Extension of Stay
A petitioner may request an extension of stay for an O-1 or O-2 nonimmigrant beneficiary by filing a new Petition for a Nonimmigrant Worker (Form I-129).[13] O-3 dependents may request an extension of stay or change of status by filing an Application to Extend/Change Nonimmigrant Status (Form I-539), and, when applicable, Supplemental Information for Application to Extend/Change Nonimmigrant Status (Form I-539A).
USCIS may authorize an extension of stay in increments of up to 1 year for an O-1 or O-2 beneficiary to continue or complete the same event or activity for which he or she was admitted, plus an additional 10 days to allow the beneficiary to get his or her personal affairs in order.[14] There is no limit to the number of extensions of stay a petitioner can file for the same beneficiary.
USCIS should not deny requests for extensions of stay filed by the initial petitioner solely on the basis that the event that supported the initial petition has changed. USCIS also should not deny such requests filed by subsequent petitioners solely on the basis that the event or employer has changed. Furthermore, USCIS should not deny such requests on the basis of the approval of a permanent labor certification or the filing of a preference petition for the O-1 beneficiary.[15]
C. Change of Status
Generally, a beneficiary in a current valid nonimmigrant status who has not violated his or her status is eligible to change status to that of an O nonimmigrant without having to depart the United States.[16]
To change to O nonimmigrant status, the petitioning employer or agent should file a Petition for a Nonimmigrant Worker (Form I-129) before the beneficiary’s current status expires and indicate the request is for a change of status.[17] The beneficiary cannot work in the new nonimmigrant classification until USCIS approves the petition and the change of status request. If USCIS determines that the beneficiary is eligible for the O classification, but not a change of status, the beneficiary must depart the United States, apply for a nonimmigrant visa at a U.S. consular post abroad (unless visa exempt), and then be readmitted to the United States in O-1 or O-2 status.[18]
USCIS should not deny an application for change of status on the basis of the approval of a permanent labor certification or the filing of a preference petition for the O-1 beneficiary.[19]
D. Change of Employer
If an O nonimmigrant in the United States seeks to change employers, the new employer or agent must file a Petition for a Nonimmigrant Worker (Form I-129) to authorize the new employment and, if applicable, request to extend the beneficiary’s stay. An O-2 beneficiary may change employers only in conjunction with a change of employers by the principal O-1 beneficiary. If an agent filed the petition, the agent must file an amended petition with evidence relating to the new employer.[20]
In the case of a professional O-1 athlete traded from one organization to another, employment authorization for the player automatically continues for a period of 30 days after acquisition by the new organization, within which time the new organization is expected to file a new Petition for a Nonimmigrant Worker (Form I-129). If a new petition is not filed within 30 days, employment authorization ceases. If a new petition is filed within 30 days, the professional athlete is deemed to be in valid O-1 status, and employment continues to be authorized, until the petition is adjudicated. If USCIS denies the new petition, employment authorization ceases.[21]
Footnotes
[^ 1] See 8 CFR 214.2(o)(6)(iii).
[^ 3] See INA 101(a)(15)(O). See INA 214(a)(2)(A).
[^ 4] See 8 CFR 214.2(o)(1)(i).
[^ 5] See 8 CFR 214.2(o)(3)(ii).
[^ 6] See 8 CFR 214.2(o)(1)(ii)(A)(1).
[^ 7] See 8 CFR 214.2(o)(2)(ii)(C).
[^ 8] See 8 CFR 214.2(o)(6)(iii).
[^ 9] Activities engaged in during the beneficiary's trips outside the United States should not by themselves be used to limit a validity period. An officer should primarily focus on the relatedness of the activities inside the United States to determine whether the beneficiary is engaged in an event for purposes of the validity period.
[^ 10] Pursuant to 8 CFR 214.2(o)(2)(iv)(D), in the case of a petition filed for an artist or entertainer, a petitioner may add additional performances or engagements during the validity period of the petition without filing an amended petition, provided the additional performances or engagements require a person of O-1 caliber.
[^ 11] See 8 CFR 214.1(l)(2).
[^ 12] See 8 CFR 214.2(o)(4).
[^ 13] See 8 CFR 214.1(c)(1). Where a petitioner demonstrates eligibility for a requested extension, it may be granted at the discretion of USCIS. There is no appeal from the denial of a request for extension of stay. See 8 CFR 214.1(c)(5).
[^ 14] See 8 CFR 214.2(o)(12)(ii).
[^ 15] See 8 CFR 214.2(o)(13).
[^ 16] See INA 248. See 8 CFR 248.1(a). An example of a violation of status is if, generally, the nonimmigrant’s current status expires before filing a Petition for a Nonimmigrant Worker (Form I-129) with USCIS or by working without authorization.
[^ 17] See 8 CFR 248.3(a).
[^ 18] There is no appeal from a change of status denial. See 8 CFR 248.3(g).
[^ 19] See 8 CFR 214.2(o)(13).