Can O-1 Visa Workers Maintain Valid Status Amid the COVID-19 Pandemic?
O-1 visas extend employment opportunities to those with extraordinary ability in science, art, education, business or athletics, or those who have shown extraordinary achievement in film or television. But COVID-19 forced festivals, concerts, film and television production, and sporting events to be canceled or postponed. Many O-1 visa holders employed as artists, musicians, athletes or actors lost their jobs. Many who are still employed have suffered cuts in pay or hours or have moved to remote work. The options available to O-1 visa holders will vary from case to case, but below are some important considerations for obtaining and maintaining valid status.
No Visa Restrictions
The previous administration restricted certain types of employment visas, but not O-1 visas. If there are available appointments, O-1 visas can still be issued at consulates abroad. Keep in mind that country-specific travel restrictions are still in place in some parts of the world, though there are some exceptions that may apply.
Remote Work Allowed
An increasing number of U.S. employers set up policies that either allow or require employees to work from home due to COVID-19. Luckily, O-1 visa holders do not have to work at a specific location and can work at multiple locations. If they can perform the same job duties from home, that will most likely be allowed and will not be considered a material change.
Ways to Keep O-1 Status Even With Job Losses or Cuts in Pay or Hours
Pay Cuts
The economic downturn linked to COVID-19 left many employers struggling to meet the wage obligations that come with employing foreign talent. However, the regulations do not contain a prevailing wage requirement for O-1 visas, nor is a certain wage structure required. Therefore, it is possible to maintain O-1 status even if pay cuts occur due to COVID-19.
Still, employers must acknowledge that many O-1 petitions are granted, in part, based on evidence that the employee will command a high salary or other remuneration. O-1 petitioners must show that the individual has either received a one-time major achievement or has enough evidence for at least three categories from a list of other criteria. If evidence of a high salary or other remuneration was one of the categories the petitioner relied on to show that the individual qualifies for the O-1 visa, a major drop in pay could be an issue – even if it’s COVID-19 related. In that situation, the petitioner would need to file an amended petition to show that the individual meets three other O-1 criteria.
Hour Cutbacks
Many employers have also had to reduce their employees’ hours due to economic reasons during the pandemic. If an O-1 visa holder is still performing the same duties, a temporary cutback of hours with the expectation that the job will return to normal in the future would likely be allowed. However, if the change from full-time to part-time work is permanent, the petitioner should consider filing an amended petition. Depending on the circumstances, this could be seen as a material change.
Job Loss
In general, O-1 visa holders must remain employed and work for the employer listed on their petition. O-1 visa holders who have lost their jobs often have a grace period of 60 days or until their authorized expiration date (whichever date is sooner) to stay in the country. The grace period is allowed only once during an authorized validity period. It’s provided to give the individual a chance to find other employment or to prepare to leave the country.
If the individual wants to keep working in O-1 status for another employer, he or she must seek work in the area of extraordinary ability or achievement. However, the position does not have to require a person of O-1 caliber. The individual may also seek to change their status to another visa category if they find and qualify for employment in a different category. The new employer will have to file a new petition, and the new employee cannot start working until the new petition is approved. Premium processing is available for O-1 petitions, as well as several other nonimmigrant visa categories.
Please contact Brandon Davis or Laura Buck of Phelps’ Immigration team if you have questions or need further guidance.
