Note: We have not provided the real names of our clients or defining details about them in order to protect their confidentiality.
A Successful Business Coach and a Request for Evidence that Questioned Everything
Ivan was a prominent Russian-based business coach, having his own distribution company for providing his lessons in scaling his clients' businesses with sagacious advice on everything from maximizing product quality to effectively focused marketing. He had earned significant sums of revenue through the business and other ventures he had been a part of and now wished to continue expanding on his success by bringing his services to the United States.
A Successful Business Coach's O-1 Visa
An RFE Success Story
In order to prove that Ivan merited a granting of the O-1 visa for extraordinary ability, evidence needed to be provided that he had received a major, internationally-recognized award, such as a Nobel Prize, or evidence of at least three of the following:
Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor
Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field
Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought
Original scientific, scholarly, or business-related contributions of major significance in the field
Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought
A high salary or other remuneration for services as evidenced by contracts or other reliable evidence
Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought
Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation
If these standards didn't readily apply to our client, comparable evidence could also be submitted in order to establish eligibility.
USCIS Issues a Request for Evidence
Uncharacteristically for such an O-1 petition, United States Citizenship and Immigration Services (USCIS) issued a Request for Evidence (RFE) probing into the qualifying validity of nearly every once of the application's claims for satisfying the extraordinary ability criteria.
What follows is an outline of each of the original petition's claims, the RFE's qualms related to it, and our response in return. In general, we set on an overall goal of demonstrating the presence of a preponderance of evidence as to Ivan's O-1 eligibility, him being of the small percentage of individuals who has risen to the top of his field of endeavor.
The initial petition provided numerous sources by which articles had been published regarding our client, including multiple interviews and pieces demonstrative of Ivan's eminence in the business coaching field. We also provided additional sources establishing the significance of these media purveyors, such as pages showing their circulation numbers with concern to their particular niche and region.
The RFE's Response
USCIS deemed the evidence provided insufficient, stating that it was unable to determine the significance of the published material and that it did not appear that the articles were "from professional or major trade publications, newspapers or other major media."
We began by setting forth that there were two statutory criteria for the article sources that we needed to prove:
That the articles are about the alien related to his work in the field.
That the publications where the articles appeared can be considered professional, major trade journals, or other forms of major media.
We also emphasized that the publications did not need to establish that the beneficiary is one of the best in his field based on the statutory language of the regulations with an inclusion of the specific case law establishing this fact.
First we addressed the context of the articles, pointing out that they were clearly all satisfactory of the criterion that their subjects were focused on Ivan and his work in the field. Moreover, these interviews served as unequivocal proof that our client was considered and repeatedly invited as a recognized expert within the field. We also provided yet another article further demonstrating this assertion.
Second, we sought to show that the publishers were indeed major media under the O-1 visa's statutory requirements. In fact, the circulation data and evidence provided of a significant readership base was indicative of major media, further expounding on the trusted validity of the figures provided by means such as the process by which they are gathered and the vast multitude of other global sites and publishers the sources are being ranked against. We were also sure to more emphatically point out the particular views Ivan's specific articles had received.
In the original petition we provided numerous instances of conferences Ivan had been invited to as well as evidence of the distinguished nature of these conferences. We also utilized numerous recommendation letters by independent experts within the field so as to demonstrate Ivan's consequential significance within the industry.
The RFE's Response
USCIS again determined the evidence provided to be insufficient, stating that it was "insufficient for USCIS to determine the beneficiary's achievements and how they are of major significance in the field." As for the letters provided by independent experts, it similarly determined that these were "insufficient to determine if beneficiary's work is original or if the beneficiary's major significant contributions provoked widespread public commentary in the field of endeavor."
We countered with a citation of the fact that Ivan's contributions to the field needed to have "provoked widespread public commentary" did not exist anywhere in USCIS regulations, rendering this argument invalid. Rather, Ivan's significant contributions appropriately demonstrable by the facts of his commercial success and expansive customer base compared to other coaching professionals similarly situated in the field. He had appeared on industry related websites in addition to authoring hundreds of courses for his clientele as well as three best selling books and appearing at major conferences of relevance.
Our response also directed USCIS to reevaluate their analysis of the independent testimony, especially regarding their obligation to give these due weight and their apparent missing of significant facts as pointed out by the experts of Ivan's impact and near unrivaled success. We also gave repeated emphasis to the distinguished nature of the experts and their validity in judging the exemplary status and original contributions of our client.
Failure to duly consider this expert testimony would be a violation of due process, something we were sure to point out along with the applicable case law.
Judging the Work of Others
In order to satisfy this criterion, the O-1 petition provided evidence of an inherent quality within Ivan's work, his teaching and and evaluation of the work of other business coaching experts.
The RFE's Response
USCIS stated in the RFE that the evidence provided was incompatible with satisfying the judging criterion, specifically that it did not appear to be equivalent to "serving as a judge or being on a panel in a way that aligns with the statutory and regulatory intent that O-1 As should be reserved for individuals who have risen to the very top of their field."
We began our counterargument with a verbatim reading of the regulatory criterion: "Evidence of the alien's participation on a panel, or individually, as a judge of the work of others in the same or an allied field of specialization to that for which classification is sought." With this in mind, we emphasized that an intrinsic facet of Ivan's work was the evaluation of the performance of other business coaches and helping them improve through the judging and constructive analysis of their strategies. Moreover, direct instances of Ivan's work in this regard were described in the letters by independent experts. Nowhere in the regulations or guidance is it explained what judging may be limited to - therefore, this interpretation was applicable under the plain language of the statutory language and must be accepted.
This included the numerous courses our client had devised for the edification of his clientele, and we endeavored even further to provide actual printouts of additional courses in the RFE response.
In order to satisfy this criterion, the O-1 petition referenced the three bestselling books Ivan had published with concern to his field.
The RFE's Response
USCIS determined this method of establishing eligibility to be insufficient, asserting that the importance and significance of the books could not be ascertained, nor were they demonstrable of falling under the statutory definition of scholarly articles.
With emphasis to the fact that it is not statutorily required that the beneficiary-published articles must be significant and important within the relevant field of expertise, we set out a defense in which two items needed to be demonstrated:
That Ivan had authored articles that could be classified as "scholarly." In other words, that they were written for "learned" persons having a profound knowledge of the field.
That the publications where Ivan's articles appeared were professional, major trade publications or other media.
We pointed out that, based on the content and targeted audience of the books, the publications were certainly intended for other business coaches ("learned" persons) seeking to improve their own methods. Being an educational source for similarly geared professionals, these should undoubtedly be considered as works of a scholarly nature.
In satisfying our second objective, we showed the publisher to be a form of major media in the further emphasis of the fact that the books were published by the largest e-commerce site in Russia. In combination with documentation of this fact included within the response, we ensured that there should be no reasonable doubt as to the placing of the publisher under the "major media" category.
Employment in A Critical or Essential Capacity
In an initially assumed satisfaction of this criterion the petition included multiple comprehensive descriptions of Ivan's employment history and the multitudinous achievements these enterprises had achieved as well as his essential role in them. These accolades and the companies' prominence withing their respective industries were well documented within the petition, including various awards, benchmarks, media coverage and the testimony of experts.
The RFE's Response
While USCIS accepted that Ivan had clearly been employed in a critical or essential capacity for the listed enterprises, it did not believe that the distinguished nature of the companies had been adequately substantiated.
We provided the foundation of our persuasive effort with the outlining of what "distinguished" actually means, namely something "marked by eminence, distinction, or excellence distinguished leadership" or "befitting an eminent person."
Our response again went over the various accolades of the companies Ivan had serviced, including such signs of their repute as the prominence of their clientele, top rankings in their industry, global renown, prodigious customer bases and monetary success. In equivalence with the accepted definition of "distinguished" given, we did not believe that USCIS should have reason to doubt this categorical application.
As for Ivan's remuneration a profusion of relevant documents were submitted, including bank statements, payroll printout and pay scale information so that his compensation could be seen in comparison to others in his profession.
The RFE's Response
The RFE stated that the original petition did not include enough corroborating evidence demonstrating that Ivan had been compensated highly compared to other professionals in the industry.
This was perhaps the most surprising assertion made in the request, as Ivan's compensation through his successful enterprises, even if the pay scale information had not been included, was self-evidently lavish and ubiquitously unmatched by others similarly situated by a significant margin.
We again pointed to the analysis of the profession and documentation of Ivan's high remuneration within it, placing him within a small percentage of the most profitable within his field. This information was demonstrative both in his home country of Russia and the United States, evidence that was further bolstered by our provision of additional analytics from even more sources proving his enormous fiscal success.
Ivan was clearly among the highest paid in the entirety of the business coaching sector, a well documented fact that USCIS should have had no trouble in accepting.
Success: Ivan's O-1 Extraordinary Ability Visa is Granted
After a great deal of arduous research and the meticulous presentation of counterpoints to the RFE's exceedingly trifling qualms in approving Ivan's petition, our efforts proved to be a success.
This was a highly unusual RFE, and there appears to be an emergent pattern of their issuance as USCIS becomes more strident in its efforts to regiment its granting of previously acceptable visa applications. Still, with prudent care and emphasis of the statutory guidance of which adjudicators are obligated to operate in accordance, even an excessively reluctant agency can be persuaded as to the rightful admittance of worthy individuals such as our client.