MAZEL IMMIGRATION LAW FAQs
Not intended as legal advice.
O-1 FAQs
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The O-1 is an employment-based nonimmigrant visa for individuals who possesses extraordinary ability in the sciences, arts, education, business, or athletics (O-1A visa), 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 (O-1B visa). Note that many design related IT positions may lend themselves to the O-1B classification, an arguably lesser standard than the O-1A.
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USCIS defines extraordinary ability as “one of the small percentage who have arisen to the very top of the field of endeavor.” (Note that a field of endeavor can be defined relatively narrowly).
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We recommend beginning to think about—and build—your “immigration cv”. This will help both you and our firm to define your field of endeavor, as well as make it easier when it becomes time to gather supporting evidence for an O-1 application package.
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Unlike the H-1B visa, there is no annual cap to the number of O-1 visas that can be issued each year. Likewise, there is no specific time period during the year that an O-1 petition must be filed.
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The O-1 visa is granted with an initial validity period of up to three years. Following the initial validity period, the O-1 visa can be extended indefinitely in one-year increments.
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It generally takes several weeks to prepare and file an O-1 petition, depending on the quality and quantity of the evidence you can provide to supplement the petition. Once our firm receives the go-forward, we will send you a link to online questionnaires and a checklist of information needed from you. Our firm will work closely with you to strategize the O-1 case. This includes defining your extraordinary ability field, determining appropriate evidence in support, and identifying experts who can attest to your expertise in your field. We will draft Letters of Attestation on the letter-writers’ behalf; you will need to work closely with the letter-writers to review and sign the letters. We will also draft the necessary forms and supporting documentation for your employer’s signature. Once the O-1 petition is assembled and filed, USCIS will typically adjudicate the case within 15 calendar days (if filed by Premium Processing) or several months (if filed by regular processing)
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Your spouse and any children (under the age of 18) are eligible to apply for O-3 dependent visas based on your O-1 status. Currently, O-3 dependents are not permitted to apply for work authorization.
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Yes. O-1 visa holders are permitted to extend status and receive O-1 visa foil stamps even with an I-140 petition approved on their behalf (think: PERM based I-140 or National Interest Waiver, Outstanding Researcher or Extraordinary Ability based I-140. If your employer wishes to pursue the employment-based immigration process on your behalf, we are able to advise accordingly.
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There should be no additional restrictions other than best practice of not traveling while a petition is pending. Immigration counsel will always want to review your immigration history and your qualifying documents to provide a more accurate assessment of any specific restrictions or things to be aware of.
VISA FOIL FAQs
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The standard fee for petition-based visa categories (including H, L, and O) is $205.00 for each. Non-petition-based nonimmigrant visa categories (including F and J) are $185.00 for each.
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If you have previously held a U.S. visa, you may be eligible for a dropbox appointment or interview waiver. However, this is at the discretion of the consulate, so please check on the consular website when you go to complete the DS-160.
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Certain consulates at times will accept applications by third country nationals (TCNs). Always check the consular website and with MIL, as applicable, to try to avoid delays.
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You should check with your Designated School Official (DSO) to ensure that USCIS did not erroneously cut off your F-1 status (as if the case was approved as a Change of Status). DSOs can typically correct errors caused by USCIS in SEVIS. Provide your DSO with a copy of the H-1B approval notice that shows approval as consular post processing.
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We advise that all employees traveling abroad with a valid visa foil should bring the following for re-entry: your valid passport, visa foil, I-797 H-1B approval notice, and most recent paystubs for the last 2 months.
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Sometimes administrative processing cannot be avoided and is triggered on the basis of unpublished national security concerns. Typically, it may be resolved within 1-4 weeks. To try avoid any issues at the Consulate, when applying for your visa at the consulate, make sure to bring the following at minimum: Form DS-160 confirmation page, appointment notice, MRV receipt, signed Form G-28, an employer verification letter or the employer letter from your petition from the last 6 months, copies of your most recent paystubs for the last two months, current and previously used passports, CV and copies of your degrees, and a copy of your most recent H-1B petition.
Please note that consulates may request additional information that is not included above. Check the consular website where you are applying to ensure you have the most up to date information.
Additionally, if placed on administrative processing, the consular officer may provide you with a list of documents or information to submit, called a 221(g) letter. The applicant should return the information requested as soon as possible to establish eligibility and be approved for their visa.
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Ideally, please inform us 2-4 months prior to your international travel plans so we may provide immigration legal assistance, as applicable.
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Provide a copy of your new visa foil stamp (as applicable), and your new I-94 record. Please be sure to check your I-94 record for accuracy before providing it to us.
F-1 SAME DAY CPT FAQs
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Curricular practical training (CPT) is work authorization directly related to a student’s major area of study and permits up to full time work authorization while in the course of study. The designated school official (DSO) authorizes CPT in SEVIS, the Student Exchange Visitor Program. This is printed on the student’s Form I-20. Students with CPT are authorized to work for one employer, related to the student’s area of study, for the allotted validity time on the I-20.
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Same-day CPT or Day 1 CPT employment is offered by accredited universities and allows the student work authorization on the same day they matriculate to the school. “Same-day CPT” can be a valid back-up plan for those not selected in the FY H-1B Lottery and require an extension of their F-1 status.
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Recently, USCIS and Consular Officers have shown increased scrutiny of same-day CPT. This can relate to the CPT not having a sufficient educational component, employment not aligning with the student’s area of study, and other eligibility criteria. It is important to ensure that the school is accredited, and the program is primarily about education, with employment being in the same field of study. In looking at educational programs, we strongly advise that you check the accreditation status and history of the institution you intend to attend by reviewing government resources on CPT institutions below:
The Department of Education:
https://ope.ed.gov/dapip/#/home
The Department of Homeland Security:
https://studyinthestates.dhs.gov/school-search
Students should be careful when selecting a program which provides the same level of degree (think: a second Masters). While this may be permissible, USCIS may scrutinize it. MIL may be able to provide anecdotal data on certain accredited programs.
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Retain all records about attending your program. Most programs require 3 in-person visits per semester (weekend attendance). Retain syllabi, cooperative agreement between the school and the employer, evidence of physically attending classes, evidence of payment of tuition, evidence of submission of assignments, and evidence of completion of courses including grades.
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F-1 holders typically have 60 days past EAD authorization to remain in the US but not work. If the F-1 holder anticipates receiving CPT work authorization within that 60-day grace period, their employer may determine to F-1 holder on administrative leave without pay during the gap.
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No. There is no cap-gap work authorization permitted.
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This depends. If you are not seeking a higher degree, you would not be eligible for any OPT. If you have had 12 months or more of full-time CPT for a next level degree, you would be ineligible for OPT. If you have had 12 months or more of part time CPT for a next level degree, you may be eligible for OPT.