Important O-1 Visa News
On the 17th of September 2020, USCIS released policy guidance in the USCIS Policy Manual regarding the latest updates and the consolidation of guidance concerning O nonimmigrant visa classification.
New Policy Highlights
· Expands upon existing guidance for evaluating O-1 eligibility, including how officers determine if the petitioner has satisfied the evidentiary criteria and established in the totality of the evidence that the beneficiary has extraordinary ability.
· Clarifies the circumstances under which a petitioner may rely upon “comparable evidence” to meet the evidentiary requirements for certain O-1 beneficiaries.
A. Classification Standard
In order to qualify as a person of “extraordinary ability” in the sciences, education, business, or athletics (commonly referred to as O-1A), or in arts (commonly referred to as O-1B (Arts)), a beneficiary must have “sustained national or international acclaim.”
“Extraordinary ability” is defined in the regulations of O-1 as:
In the science, business, educational, or athletic field, it is the one who’s level of expertise indicates that the person is in the top percentage of the field.
In the field of arts, the high level of achievement is defined by the evidence of a high degree of skill and recognition, which is more than ordinary. The art has to be also considered as prominent, leading, somewhat celebrated, or well-known in the arts field.
“Extraordinary achievement,” when talking about the individuals in the motion picture or TV industry, is a high level of accomplishment in the industry. A high level of accomplishment is considered a high degree of skill with being recognized as outstanding, notable, or leading in the field.
B. Assessment of eligibility for O-1 Classification
In reviewing each O-1 case, USCIS must determine whether the O-1 beneficiary meets the definition of extraordinary ability. The regulations describe which types of evidence the petition can submit in support of each type of O-1 petition. In general, the petition must be accompanied by either evidence of receipt of a qualifying major award, or at least three alternate forms of evidence. However, an officer cannot make a favorable determination simply because the petitioner has submitted the forms of documentation described in the regulations.
The evidentiary requirements are not however the standard for the classification, but are instead the mechanism for establishing whether the standard is met. Accordingly, the fact that the petitioner has produced evidence satisfying at least three evidentiary criteria does not necessarily establish that the beneficiary is eligible for the O-1 classification.
Rather, USCIS must determine eligibility based on whether the totality of the evidence submitted demonstrates that the beneficiary meets the relevant standard.
More specifically, under the new guidance, USCIS takes a two-step approach in its adjudication:
1) USCIS first determines whether the petitioner has submitted evidence of a major qualifying award or meeting at least 3 of the criteria for the classification.
2) Then, if the petitioner meets the necessary criteria, the officer must consider all the evidence in the record in its totality to determine if the beneficiary is an alien of extraordinary ability or achievement as defined in INA 101(a)(15)(O)(i) and 8 CFR 214.2(o).
The totality of evidence approach has been consistently used in EB-1 adjudications. However, with O-1 petitions it has not been the standard policy until the new guidance was released.
With the new addition of the “totality of evidence” standard of review, the preparation of each O-1 case needs to be as substantial and thorough as for EB-1 immigrant petitions.
Meeting the evidentiary requirements
This step is limited to only deciding if the submitted evidence is comprised of either a qualifying award, or at least three of the applicable alternate criteria. No determination is made during this step as to whether or not the evidence is indicative that the beneficiary meets the applicable definitional standard for the classification.
What does this mean exactly?
USCIS specifically points out that officers are not supposed to look into whether evidence for each criterion is indicative of an extraordinary level of achievement. Rather, USCIS is supposed to determine whether the evidence submitted satisfies the plain language of the regulation for each criterion. Evaluation of the “extraordinariness” will come into play only in the 2nd step of adjudication when all evidence of the case is evaluated in its totality.
For example, authorship of scholarly articles in the field in professional journals or other major media, alone, regardless of caliber, would satisfy the criterion at 8 CFR 214.2(o)(3)(iii)(B)(6). Analysis of whether those publications are consistent with a finding that the beneficiary has sustained acclaim and is among the small percentage at the top of the field would be addressed and articulated in the totality determination AND NOT IN EVALUATION OF THIS SPECIFIC CRITERION.
Therefore, if the petitioner has presented evidence of authorship of scholarly articles, the criterion has been satisfied regardless of the caliber of evidence. In other words, it is relatively easy to satisfy each individual criterion. However, it does not by itself establish eligibility for O-1. Then, USCIS moves to the 2nd step in the evaluation.
2. Totality Determination
Providing the evidence does not itself establish if the applicant meets the standard for extraordinary ability or achievement. If requirements specified in the regulation are met, the officer will evaluate the totality of all the evidence of the case to determine whether it establishes that the:
· O-1A applicant has sustained national and international acclaim and is considered to be in the top percentage of their field.
· O-1 (Arts) applicant has sustained national and international acclaim and has achieved distinction in their field of arts.
· O-1B (MPTV) applicant has a history of exceptional achievement in the film and TV industry, such as the applicant has accomplishments in the industry evidenced by their skill and recognition that is significantly above that ordinarily encountered to the extent that the person is recognized as outstanding, notable, or leading in the field.
If the officer determines that in totality of evidence the petitioner has failed to meet the standards, the officer shall communicate these specific reasons to the petitioner.
Preponderance of Evidence Standard of Review
It is also important to remember that the standard of review in O-1 cases is Preponderance of Evidence, which means “more likely than not”. This standard has a lower threshold of proof as opposed to “clear and convincing” evidence standard. Thus, the petitioner has to establish that it is more likely than not that the beneficiary has demonstrated qualifications to be considered an alien of extraordinary abilities.
See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010) (“[T]ruth is to be determined not by the quantity of evidence alone but by its quality. Therefore, in adjudicating the application pursuant to the preponderance of the evidence standard, the director must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true”).
Comparable Evidence
Petitioners are expected to provide evidence of the enumerated evidentiary criteria. If a certain criterion is not readily applicable to the beneficiary’s occupation, the petitioner may submit evidence that is not specifically described in that criterion but is comparable to that criterion.
Each Criterion is Evaluated
The comparable evidence provision was intended as a “catch-all” to allow for additional evidence to be considered when the other enumerated criteria do not readily apply, in whole or in part, when evaluating whether the beneficiary has extraordinary ability. See 59 FR 41818, 41820 (August 15, 1994).
USCIS believes that the best interpretation as a matter of policy is to allow for consideration of comparable evidence on a criterion-by-criterion basis.
Therefore, the petitioner is not required to show that all or a majority of the criteria does not readily apply to the beneficiary’s occupation before USCIS will accept comparable evidence. Instead, for comparable evidence to be considered, the petitioner must explain why a particular evidentiary criterion listed in the regulations is not readily applicable to the beneficiary’s occupation, as well as why the submitted evidence is “comparable” to that criterion.
2. When Comparable Evidence is Acceptable
A general unsupported assertion that the listed criterion does not readily apply to the beneficiary’s occupation is not probative. However, a statement alone can be sufficient if it is detailed, specific, and credible. Officers do not consider comparable evidence if the petitioner submits evidence in lieu of a particular criterion that is readily applicable to the beneficiary’s occupation simply because the beneficiary cannot satisfy that criterion.
A criterion need not be entirely inapplicable to the beneficiary’s occupation. Rather, comparable evidence is allowed if the petitioner shows that a criterion is not easily applicable to the beneficiary’s job or profession.
A petitioner relying on evidence that is comparable to one or more of the criteria listed at 8 CFR 214.2(o)(3)(iii)(B) must still meet at least three separate evidentiary criteria to satisfy the evidence requirements, even if one or more of those criteria are met through evidence that is not specifically described in the regulation but is comparable.
These are very important changes that have been published in USCIS Policy Manual. For the recent months, USCIS has issued requests for evidence that have wrongfully asked for the evidence that each criterion has to show the extraordinary level of the alien, which was unsupported by the regulations or any guidance. With the USCIS published policy, you can alert the adjudicators of the appropriate standard of review to prevent issuance of arbitrary denials.
With the new Totality of Evidence approach in adjudicating O-1 petitions, it is now more important than ever to prepare strong and thorough O-1 cases. We encourage all foreign nationals looking into filing O-1 to have attorney representation.
To determine whether you are eligible for O-1 visa or to obtain any related help, contact our office.