O-1 Visas for Chefs and Culinary Professionals

This article is a detailed description of the O-1 visa for chefs and culinary professionals. It summarizes the legal requirements for two relevant O visa classifications — the O-1B Artist Visa and the O-1A Science, Business, and/or Education Visa. It discusses how these classifications can apply to international chefs. It also briefly addresses the O-2 and O-3 visa classifications for supporting personnel and families of O-1 visa holders. The materials in this article focus on specific legal requirements with citations to relevant authority and are therefore technical in nature. That said, I've tried my best to make this article accessible to lawyers and non-lawyers alike.

The O-1B Visa for Chefs (Artist Visa)

The O-1B visa classification is an ability-based nonimmigrant work visa for artists, including chefs. The O-1 is highly selective and can be difficult to obtain. See e.g., Even Being a Legal Immigrant Is Complicated in the Restaurant Industry, Eater, May 8, 2017. However, for chefs who can provide evidence of the criteria explained below, the O-1B can provide a path to work authorization. For example, after obtaining his chef's O-1 visa, Renato Viola went on to open his popular pizza joints, "Mister O1" in Miami. See His Pizza is So ‘Extraordinary,’ the Government Granted Him a U.S. Visa, Miami Herald, March 7, 2018.

The O-1B classification is for aliens who have extraordinary ability in the arts. 8 U.S.C. § 1101(a)(15)(O). The O-1B is a frequent choice for chefs because the law specifically includes culinary arts in its definition of "arts." See 8 CFR § 214.2(o)(3)(ii)("Arts includes any field of creative activity or endeavor such as, but not limited to, *** culinary arts[.]"). A chef's extraordinary ability must be demonstrated by sustained national or international acclaim and the chef's achievements must have been recognized in the field through extensive documentation. 8 U.S.C. § 1101(a)(15)(O). Likewise, the chef must seek to enter the United States to continue work in the area of extraordinary ability. Id. An O visa "shall be valid for a period of time determined by [USCIS] to be necessary to accomplish the event or activity, not to exceed 3 years." 8 CFR § 214.2(o)(6)(iii)(A).

There are three paths a chef can use to demonstrate "extraordinary ability" for the purpose of an O-1B visa. The evidence required for an O-1B visa can come in many forms. It most frequently consists of documents (e.g., press articles, contracts, financial documents, etc.) and statements from well qualified individuals with first hand knowledge of the chef's abilities, accomplishments, and the field in general. See 8 CFR § 214.2(o)(2)(iii)(listing types of evidence required for an O visa petition).

On a practical note, the petitioner for a chef's O visa petition is usually the chef's employer. See 8 CFR 214.2(o)(2)(i) ("An O-1 [...]petition may only be filed by a United States employer, a United States agent, or a foreign employer through a United States agent. *** An O alien may not petition for himself or herself."). It is therefore an employer or agent that must usually file a petition and provide USCIS with evidence of a chef's extraordinary ability. However, for ease of reading, this article refers to a chef and a chef's prospective employer collectively as "the chef."

The first path for a chef to meet the O-1B requirements is a single factor test for "evidence that the alien has been nominated for, or has been the recipient of, significant national or international awards or prizes in the particular field[.]" 8 CFR 214.2 (o)(3)(iv). Borrowing from the film industry, the regulations provide examples of: "an Academy Award, an Emmy, a Grammy, or a Director's Guild Award." 8 CFR § 214.2 (o)(3)(iv)(A). Likewise, a Nobel Prize would likely satisfy the requirement. See e.g., 8 CFR § 214.2 (o)(3)(iii)(A). The regulations do not provide any examples of qualifying awards for the culinary fields. However, it is safe to assume that only awards and prizes at the very top of the field will meet the requirements of this particular path. Michelin, James Beard, or other well-known awards at the very top of the field might fit this definition.

The second (and far more common) path is to provide evidence that a chef meets at least 3 of the 6 "achievement criteria" described below. While the 3 of 6 number is written into the law, USCIS agents "cannot make a favorable determination simply because the petitioner has submitted three of the forms of documentation mentioned. It must be a decision based on whether the total evidence submitted establishes that the alien of extraordinary ability has sustained national or international acclaim and recognition in his field of endeavor." USCIS Adjudicator's Field Manual, Chapter 33.4, Section (d).

The O-1B achievement criteria are as follows:

O-1B Achievement Criterion #1
Lead in Distinguished Productions or Events

"Evidence that the alien has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications contracts, or endorsements[.]" 8 CFR § 214.2 (o)(3)(iv)(B)(1). The regulations elaborate that "[e]vent means an activity such as, but not limited to, a scientific project, conference, convention, lecture series, tour, exhibit, business project, academic year, or engagement. *** A group of related activities may also be considered to be an event." 8 CFR § 214.2(o)(3)(ii).

For chefs, "productions and events" could ostensibly refer to any number of creative projects. Restaurants, food-related products, business ventures, and cookbooks are some common examples that may fit within the "business project" category. This category might also apply to other less common projects that utilize chefs. Consider a chef who wishes to develop food-related educational programming or become bring culinary experience to a food-related healthcare role.

The "distinguished reputation" qualifier is important here. It is the reputation of the production or event that matters. To satisfy this requirement, USCIS requires evidence of the types listed in the statute - critical reviews, advertisements, publicity releases, publications contracts, or endorsements. It is almost always necessary to obtain statements from industry experts to lay the necessary foundation to show that the productions or events at issue are truly distinguished. While these statements do not need to be overly long or complicated, they must create a strong record.

O-1B Achievement Criterion #2
Recognition for Achievements

"Evidence that the alien has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications[.]" 8 CFR § 214.2 (o)(3)(iv)(B)(2). This criterion is commonly used by chefs because food is a frequent subject of published materials.

To qualify, the recognition must be national or international in nature. In other words, local or even regional recognition will not suffice. To the extent reviews or written materials are in a foreign language, those materials must have a full English translation when submitted with the O visa petition. See Form I-129, Instructions for Petition for Nonimmigrant Worker ("Any document you submit to USCIS information in a foreign language must have a full English language translation. The translator must certify that the English language translation is complete and accurate, and that he or she is competent to translate from the foreign language into English.").

Another detail to note here is that reviews or published materials must come from a major outlet. Written materials that are from minor or lesser known publications are unlikely to meet the standard. Assessing whether a publication is major for the purpose of the regulation should consider distribution and readership data as well as a publication's prominence within a particular field. It is important to consider the actual evidence that will be submitted to USCIS in connection with the petition. It is not enough to simply conclude, without substantial support, that a publication is major. In most cases, proof will require a combination of written statements and other outside information such as distribution statistics.

O-1B Achievement Criterion #3
Lead for Distinguished Organizations and Establishments

"Evidence that the alien has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials[.]" 8 CFR § 214.2 (o)(3)(iv)(B)(3).

This criterion is similar to the O-1B achievement criterion #1 supra and is perhaps more common than #1 in terms of its applicability to chefs. The difference between #3 and #1 is that #1 focuses on organizations or establishments, as opposed to productions or events.

The lead or critical nature of the role is important. It is not enough for a chef to be just very important or unique. The chef must be critical to the organization or establishment's mission. In assessing whether a chef meets this criteria, USCIS will look for objective evidence that the chef is a key player in the organization. While statements from an employer alone might satisfy this criterion, it is usually a good idea to include external verification such as statements from knowledgeable outside sources. This evidence might also include information like press coverage, financial documents, business plans, or other documents showing the chef's integral role in the employer's operations.

O-1B Achievement Criterion #4
Record of Major Commercial or Critically Acclaimed Successes

"Evidence that the alien has a record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications" 8 CFR § 214.2 (o)(3)(iv)(B)(4).

This achievement criterion, while clearly geared toward the film industry, frequently applies to chefs. This criterion favors chefs in some key ways. First, many restaurants and food-related operations are local in reach. In other words, most restaurants do not compete with non-local businesses in their commercial activities. Commercial success in this context may be a lower hurdle than, say, a motion picture marketed to a national audience. That said, it is still important to consider similar localities when assessing whether a success is truly major.

Second, chefs are the frequent subject of press as noted under the achievement criterion #2 (Recognition for Achievements) supra. This can make a chef's critical acclaim easier to prove in comparison to other fields that do not garner regular press.

Third, given the significant diversity in the culinary arts, the relative meaning of words like "rating" or "field" can be benefit chefs in the context of an O-1B visa. Chefs often gain significant notoriety in connection with a particular type of cuisine or within one of the many niches in the culinary arts. This type of specialized notoriety, which is common among chefs, can actually help better position a chef for an O visa.

Proving major commercial success requires careful verification from outside sources, usually including financial documents or summaries and third-party verification. As mentioned above, the nature of the success must address the particular circumstances of the commercial venture as well as trends and data in a broader context.

The occupational achievements portion of this criterion overlaps significantly with criterion #2 (Recognition for Achievements). This overlap reflects the general statutory requirement that extraordinary ability be proved by "extensive documentation." 8 U.S.C. § 1101(a)(15)(O). The total evidence of a chef's qualification for an O visa is stronger where a beneficiary's documented achievements apply to multiple criteria. This is because the O visa achievement criteria are just different ways of measuring the same thing: extraordinary ability.

O-1B Achievement Criterion #5
Significant Recognition for Achievements from Experts

"Evidence that the alien has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged. Such testimonials must be in a form which clearly indicates the author's authority, expertise, and knowledge of the alien's achievements[.]" 8 CFR § 214.2 (o)(3)(iv)(B)(5).

This criterion requires testimonials from recognized authorities in the field. The wording of this regulation suggests that multiple testimonials are required in most cases. Anyone providing a testimonial in support of an O-1B visa petition should clearly prove their authority, expertise, and personal knowledge of the chef's achievements. The author must be a recognized expert within the field.

This criterion may overlap with #2 (Recognition for Achievements) and #4 (Record of Major Commercial or Critically Acclaimed Successes).

O-1B Achievement Criterion #6
High Salary or Substantial Remuneration

"Evidence that the alien has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence[.]" 8 CFR § 214.2 (o)(3)(iv)(B)(6).

This criterion is relatively objective and, in the case of talented chefs, is often helpful to meeting the achievement criteria. The high salary or substantial remuneration criterion requires two categories of proof: (1) proof of the chef's salary and other remuneration, and (2) proof of the market rates.

The first category of proof - the chef's pay - is typically satisfied by providing USCIS with a copy of an employment contract as required by the regulation or, where no contract exists, a written summary of an oral agreement. See 8 CFR § 214.2(o)(2)(ii)("Petitions for O aliens shall be accompanied by *** [c]opies of any written contracts between the petitioner and the alien beneficiary or, if there is no written contract, a summary of the terms of the oral agreement under which the alien will be employed[.]). Complexities can arise in cases where a chef's remuneration includes equity or other ownership interest in a business. While equity or ownership certainly counts as remuneration, properly valuing an equity stake requires objective information as well as a proper calculation of the equity/ownership value over time. USCIS does not accept "pie in the sky" valuations without significant supporting documentation and proof. This is especially true with new restaurants and other speculative projects.

The second category of proof - proof of market wages - is often available from government sources, including the Bureau of Labor Statistics (BLS). Given the overall market for chefs in the United States, the figures are definitely helpful for most extraordinarily talented chefs who seek O visas. The regulations do not specify any percentile figure. However, many attorneys operate on the basis that a beneficiary's total remuneration should equate to greater than at least the 75th percentile and ideally the 90th percentile of the market wage. These figures will vary from location to location (e.g., New York or San Francisco numbers will be higher than Cleveland or Oklahoma City). Nationwide BLS data indicates that the 75th percentile overall chef's wage is $64,500.00 and the 90th percentile wage is $81,150.00.

The third and final path to qualify for an O visa is a catch-all, "[i]f the criteria [...] do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence in order to establish the beneficiary's eligibility." 8 CFR § 214.2 (o)(3)(iii)(C). This path is rarely used by chefs as a primary means of obtaining an O-1B visa. Instead, this path can be used as a basis for submitting other evidence of extraordinary ability that may not clearly fit within the achievement criteria categories but still helps establish overall qualification based on the totality of evidence.

O-1A Visas for Chefs (Science, Business, and/or Education Visa)

While O-1B classification is a far more common approach for chefs, the O-1A is an option in some cases where a chef's work is in a field that is separate but related to the culinary arts and therefore warrants application of different criteria. Typical fields are science, business, and education. Perhaps the most useful application for the O-1A visa for chefs is for entrepreneur chefs who have achieved distinction in the business world. Some food scientists and food educators may also be strong candidates for O-1A classification.

The three paths to an O-1A visa are similar to the O-1B: (1) a major international award, (2) 3 of 8 O-1A achievement criteria (the O-1A has two more potential criteria than the O-1B), or (3) other comparable evidence. 8 CFR 214.2 (o)(3)(iii)(A)-(C).

The first path to an O-1A visa requires proof of "[r]eceipt of a major, internationally recognized award, such as the Nobel Prize[.]" 8 CFR § 214.2 (o)(3)(iii)(A). These types of awards, as indicated by regulation's reference to the Nobel Prize, are extremely difficult to obtain and comprise a small minority of O visas.

The second and far more common path is to prove the regulatory achievement criteria. As with the O-1B, a chef must establish at least 3 of 8 criteria in addition to convincing USCIS by a totality of the evidence that he or she "has sustained national or international acclaim and recognition in his field of endeavor." See USCIS Adjudicator's Field Manual, Chapter 33.4, Section (d). These criteria are described below.

O-1A Achievement Criterion #1
Prizes or Awards

"Documentation of the alien's receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor[.]" 8 CFR § 214.2 (o)(3)(iii)(B)(1).

This criterion includes a few specific requirements. First, the prizes or awards must be national or international in nature. Prizes or awards that are only recognized locally or regionally will not suffice. Second, the prizes or awards must be for excellence in the field. To prove that a particular prize or award meets these standards, a chef usually must submit statements or other documented evidence establishing how recipients of the prizes or awards are selected and how the prizes or awards relate to the field for which the chef seeks an O-1A visa.

O-1A Achievement Criterion #2

"Documentation of the alien'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[.]" 8 CFR § 214.2 (o)(3)(iii)(B)(2).

The membership criterion looks at whether the chef is or was a member in any association in the field for which O-1A classification is claimed. This means that if a chef is seeking an O-1A visa related to the field of business, that chef will need to prove membership in one or more business-related associations. These associations can vary on a field-to-field basis, but may include industry groups, accolade groups, think tanks, and peer-reviewed associations.

The membership must also be the result of outstanding achievements and be judged by experts in the field. Again, this is a field-specific inquiry that typically requires a petitioner to establish the means by which members are selected and, where applicable, any ranking among members. The relevant field is the one claimed as a basis for the O-1A classification. A well-supported O-1A petition will also include objective evidence of the membership judges' expert qualification.

O-1A Achievement Criterion #3
Published Material

"Published material in professional or major trade publications or major media about the alien, relating to the alien'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[.]" 8 CFR § 214.2 (o)(3)(iii)(B)(3).

As with the O-1B achievement criterion #2 (Recognition for Achievements), this criterion can be a strong one for chefs seeking O-1A classification based on their scientific, educational, or business-related achievements. It often applies to chef because, as mentioned elsewhere, food-related innovations, studies, programs, etc. are the source of frequent media and trade publication coverage.

The "coverage" referenced in this criterion must be major, as opposed to minor, local, or regional. This would include major newspapers, magazines, television, or trade publications. As with any documents supporting an O visa petition, foreign language documents must include certified English translations. See Form I-129, Instructions for Petition for Nonimmigrant Worker.

The relevant coverage must also be about the beneficiary. Coverage that does not directly refer to the beneficiary is less likely to satisfy this criterion and would definitely require written evidence explaining how the coverage is actually about the beneficiary. This occurs in some cases where a petitioner substantially contributes to a project that receives coverage.

O-1A Achievement Criterion #4

"Evidence of the alien'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" 8 CFR § 214.2 (o)(3)(iii)(B)(4).

This criterion is relatively straightforward and, like the published material criterion, can apply to many culinary professionals seeking an O-1A visa. The key here is that the participation must involve judging the work of others. Simply speaking on a panel or making a presentation without judging will not meet this criterion. Evidence of judging events should include information about how judges are selected and proof that the judging relates directly to the field.

O-1A Achievement Criterion #5
Original Contributions of Major Significance

"Evidence of the alien's original scientific, scholarly, or business-related contributions of major significance in the field" 8 CFR 214.2 (o)(3)(iii)(B)(5).

This criterion acts as somewhat of a catch-all and its usefulness will vary widely based on the field. Establishing an original contribution of major significance is a very high hurdle because USCIS interprets the standard for "major significance" very strictly. This criteria may apply where a petitioner has obtained important patents or authored widely-cited scientific or scholarly works. However, the reality is that very few petitioners will be able to prove evidence of a beneficiary's original contributions of major significance.

O-1A Achievement Criterion #6
Scholarly Articles

"Evidence of the alien's authorship of scholarly articles in the field, in professional journals, or other major media" 8 CFR § 214.2 (o)(3)(iii)(B)(6).

In the context of culinary professionals, this criterion will most often apply to food scientists who have published scholarly work in journals or other major media. There may also be some health and education settings where it will apply. This criterion is distinct from #3 (Published Material) in that it requires the authorship to be of a scholarly nature.

O-1A Achievement Criteria #7
Employed in a Critical or Essential Capacity

"Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation" 8 CFR § 214.2 (o)(3)(iii)(B)(7).

There are two prongs to this criterion. First, the employment must be critical or essential. This requires proof that the beneficiary will be integral to the employer's operations. In most cases, this will be satisfied by statements from the employers. Sometimes a petition will require other external forms of evidence that will vary on a case-by-case basis.

Second, and perhaps more relevant,  the organizations and establishments where the beneficiary is or was employed must have a distinguished reputation. Proving a distinguished reputation typically requires documents and statements from prominent members of the field to verify the organization's standing.

O-1A Achievement Criterion #8
High Salary or Other Remuneration

"Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence" 8 CFR § 214.2(o)(3)(iii)(B)(8).

As with the O-1B classification, high salary or other remuneration will require proof of the beneficiary's pay and data establishing market rates. Market wages in this situation are related to the field for which classification is sought. In other words, if a chef seeks O-1A classification for business-related achievements as an entrepreneur, the comparable data must relate to the field of entrepreneurship, not chefs in general. For this reason, chefs seeking O-1A classification may have a harder time satisfying this criteria, as compared with O-1B chef visas, which are based on relatively low U.S. market wages for chefs. See O-1B achievement #6 supra for more information.

The third path to an O-1A visa is to provide comparable evidence establishing eligibility. "If the criteria [...] do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence in order to establish the beneficiary's eligibility." 8 CFR § 214.2 (o)(3)(iii)(C). Relying solely on comparable evidence is not typically advisable. However, this path provides a useful basis to offer evidence of a beneficiary's extraordinary ability that does not fit within the other criteria. 
O-2 and O-3 Visas (Supporting Personnel and Families of O-1 Chefs)
The O-2 and O-3 visa classifications provide a legal basis for the temporary admission of supporting personnel and family members of O-1 chefs. 

An O-2 visa, which applies to support personnel, is typically filed in conjunction with an O-1 petition. An O-2 visa for accompanying an O-1B chef must establish that the O-2 beneficiary is essential in order to complete the event or performance for which the O-1B is required. The standard for O-1A support personnel is whether the support personnel is an integral part of the O-1 activity. The O-2 visa allows the beneficiary to perform the support work but no other work.

O-3 visas are for family members of O-1 visa holders. The O-3 application process is relatively simple and is tied to the O-1 visa. O-3 visa holders are not permitted to work on the O-3 visa absent separate work authorization. O-3 visa holders can, however, engage in full or part time study.