O-1 Visa

What is the O-1 Visa?

The O visa, codified in section 101(a)(15)(O) of the Immigration and Nationality Act (INA), is a nonimmigrant (or temporary) form of authorization that allows noncitizens of the United States  with “extraordinary abilities” in specific fields to enter the United States and work in their field of endeavor.[1] The O visa is one of the many talent-based visas in the United States, and actually has four (4) distinct subclassifications:

• O-1A: Individuals with an extraordinary ability in the sciences, education, business, or athletics;
• O-1B: Individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry;
• O-2: Individuals who will accompany an O-1 artist or athlete to assist in a specific event or performance; and
• O-3: Individuals who are the spouse or children of O-1 and O-2 visa holders.[2]

In the esports context, the O-1A visa permits qualified ‘athletes,’ which the Department of Homeland Security (DHS) has defined to include esports players and professional gamers, the ability to enter the United States, compete in tournaments, and potentially secure sponsorship deals.[3] In simper terms, an esports athlete can seek permission from DHS to compete in the United States by applying for and being granted an O-1A visa.

What are the Requirements of the O-1A Visa?

To be eligible for an O-1A visa, the noncitizen must prove that they are coming to work in their field of endeavor, and they possess “extraordinary ability by sustained national or international acclaim.”[4] This requires proving that the individual has “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.”[5] In creating this very high standard, the legacy Immigration and Naturalization Service (INS) stated:

“Not all athletes, particularly those new to major league competition, would be able to meet [the sustained national or international acclaim] standard. A blanket rule for all major league athletes would contravene Congress’ intent to reserve this category to ‘that small percentage of individuals who have risen to the very top of their field of endeavor.’”[6]

In order to meet this standard and prove that the individual athlete rises to the level of extraordinary ability for purposes of an O-1A visa, their petition must be accompanied evidence of:

Receipt of a major, internationally recognized award (such as a Noble Prize); or

At least three of the following forms of documentation:

• Documentation of the noncitizen’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
• Documentation of the noncitizen’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
• Published material in professional or major trade publications or major media about the noncitizen, relating to the noncitizen’s work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation;
• Evidence of the noncitizen’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought;
• Evidence of the noncitizen’s original scientific, scholarly, or business-related contributions of major significance in the field;
• Evidence of the noncitizen’s authorship of scholarly articles in the field, in professional journals, or other major media;
• Evidence that the noncitizen has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation;
• Evidence that the noncitizen has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.[7]

In other words, and in more general terms, an esports athlete applying for an O-1A visa must prove that they are coming to the United States to work/compete in esports, and that they meet three (3) out of the eight (8) evidentiary criteria listed above.[8] This is generally done by showing that the athlete has received prizes/awards in competitions, including placing highly, has press in major media covering their achievements, has been a critical member for a distinguished organization or team, and has or will command a high salary as compared to other athletes, etc.[9]

Finally, it is worth noting that there are multiple pathways for applying for an O-1A visa (i.e. through a direct employer, such as a team, or a U.S. agent), and it can be granted for an initial period of up to three years and thereafter extended in one-year increments for the same employer if the athlete maintains their status as extraordinary.[10]

What About an O-1B or O-2 Visa?

Generally, other Gamers, Influencers, Content Creators, or Streamers may be eligible to apply for an O-1B visa if they can prove they have extraordinary abilities in the arts. Receiving an O-1B visa includes having an offer of employment in the United States (or several offers of employment from multiple sources, along with a third-party Agent), and demonstrating that you meet certain criteria, such as being nationally or internationally recognized, attaining commercial success, and commanding higher renumeration than others in your field, to name a few.[11] To do so, the individual will be required to provide articles written about them, letters recognizing them for their achievements by other experts in their field, evidence of their high numbers of views, followers, and/or likes as compared to others, and more information.[12] The O-1B is a great solution for those in esports who are not necessarily looking to compete, but want to be more public facing.

Finally, those individuals who can prove they are “essential” to a principal athlete’s (O-1A) or artist’s (O-1B) performance, and are coming solely to assist in that performance, may apply for an O-2 visa.[13] To prove “essentiality,” one must show that they are an integral part of the actual performance or event and possess critical skills and experience with the O-1 that are not of a general nature and that U.S. workers do not possess.[14] This would likely be relevant to esports coaches, trainers, and other support staff who have experience working with the athlete, streamer, content creator, or gamer abroad.

*Obtaining an O visa is difficult and requires both legal acumen and creativity. As such, it is best to seek the advice of an experienced immigration lawyer to go over your options for a visa.

[1] See INA § 101(a)(15)(O); 8 U.S.C. § 1101(a)(15)(O).

[2] Id.; see also “O-1 Visa: Individuals with Extraordinary Ability or Achievement” (U.S. Citizenship & Immigration Services), https://www.uscis.gov/working-in-the-united-states/temporary-workers/o-1-visa-individuals-with-extraordinary-ability-or-achievement, last visited August 15, 2024.

[3] See Courtney Subramanian, “Pro Gamers Get U.S. Work Visas, Thanks to Industry Lobbyists” (Time.com, 2013), https://newsfeed.time.com/2013/07/16/gamers-are-the-new-athletes/, accessed August 15, 2024; David North, “Government Defines Video Gamers as Athletes for Immigration Purposes” (Center for Immigration Studies, 2013), https://cis.org/North/Government-Defines-Video-Gamers-Athletes-Immigration-Purposes, accessed August 15, 2024.

[4] See O-1Visa, supra note 2.

[5] 8 C.F.R. § 214.2(o)(3)(ii); See generally Muni v. INS, 891 F.Supp 440 (N.D. Ill. 1995); 9 FAM § 402.13-4(A).

[6] 56 Fed. Reg. 60897, 60899 (Nov. 29, 1991); see also Matter of Price, in visa petition proceedings: A-29928422: designated by the Acting Associate Commissioner, Examinations, (December 29, 1994).

[7] 8 C.F.R. § 214.2(o)(3)(iii); USCIS Policy Manual, Vol. 2, Part M, Ch. 4, https://www.uscis.gov/policy-manual/volume-2-part-m-chapter-4, last visited August 15, 2024.

[8] Id.

[9] Id.; see also Josh Wildes, “Esports and Immigration Law” (Wildes Law, 2024), https://www.wildeslaw.com/immigration-resources/latest-immigration-news/esports-and-immigration-law-in-the-united-states/, accessed August 15, 2024.

[10] See generally 8 C.F.R. § 214.2(o); see also USCIS Policy Manual, Vol. 2, Part M, Ch. 9, https://www.uscis.gov/policy-manual/volume-2-part-m-chapter-9, accessed August 15, 2024.

[11] Id.; see also 8 C.F.R. § 214.2(o)(3)(iv); USCIS Policy Manual, supra note 7; Josh Wildes, “Influencers and Immigration Law” (Wildes Law, 2024), https://www.wildeslaw.com/immigration-resources/latest-immigration-news/influencers-and-immigration-law/, accessed August 15, 2024.

[12] Id.

[13] See USCIS Policy Manual, Vol. 2, Part M, Ch. 5, https://www.uscis.gov/policy-manual/volume-2-part-m-chapter-5, accessed August 15, 2024; 9 FAM § 402.13-4(B).

[14] See INA §  101(a)(15)(O)(1)(ii); 8 C.F.R. § 214.2(o)(4)(ii).