Outstanding Service, Extraordinary Results

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O-1: Going from Oy Vey to Okay!


Short of evidence of a Nobel Prize, the O-1 is an extremely document-intensive non-immigrant visa petition that can be quite laborious to prepare.   The preparation usually involves obtaining detailed testimonial letters from experts in the field explaining the beneficiary’s field of expertise and significant contributions in terms that a non-expert audience can understand. This is often a project in and of itself.   In addition, corroborating documentation of the beneficiary’s achievements must be collected and organized.  This generally includes copies of beneficiary’s journal articles, conference presentations, citation history, material published about the beneficiary, proof of having judged the work of others, and so on and so forth.

Given the effort, why would you do an O-1[1] when you can do an H-1B[2]?  This used to be an easy decision – never.  Whereas the O-1 requires demonstrating the lofty “extraordinary ability” standard, the definition of “specialty occupation” necessary to qualify for the H-1B simply entailed showing that the job required at least a bachelor’s degree and that the beneficiary had the requisite degree.  In the academic and research context, this was fairly straightforward.  Sure, the H-1B had a few more forms and the requirement of a labor condition application (LCA), but most H-1Bs could be prepared and filed within a few weeks.  The O-1 was rarely that simple, requiring less in the way of forms but as noted, much more in terms of documenting the requisite level of achievement.  On top of all that, universities and non-profit research institutions are exempt from the H-1B quota.  The H-1B was clearly the way to go.

These days, the decision is not as clear.  While the H-1B offers the beneficiary the advantage of “dual intent,” its advantages seem to be dwindling.  In the last decade, USCIS’ narrowing interpretation of “specialty occupation” correspondingly increased the time, effort, and documentation involved in the preparation of an H-1B petition.  Moreover, every petition filed is an invitation for a visit from the Fraud Detection & National Security (FDNS) unit of the U.S. Citizenship & Immigration Service (USCIS).  FDNS visits can be burdensome, with the USCIS officer asking about the nature of the job duties, the specific locations where the beneficiary is performing services, who paid for what with regards to the H-1B, and so on. In addition to USCIS, the Department of Labor (DOL) has also made the H-1B more challenging, particularly for those institutions that require on a formal prevailing wage determination.

This is not to say that the O-1 will replace the H-1B as the “go to” employment authorized non-immigrant visa.  There are many who will not qualify for the O-1, and many others who will fail to provide the necessary documentation to prepare an O-1.  Nevertheless, from the institutional perspective, it may be worth considering the O-1’s advantages.  For example, if the beneficiary needs to work at many different locations, if the department does not have a budget for legal and filing fees (or prevailing wage), or if it is a very strong candidate for whom there is no time to wait for the LCA and/or prevailing wage determination. Separate and apart from these considerations, the O-1 remains an important option when the H-1B is not; for example, those in J status with a two-year home residency requirement and those at the end of 6 years in H-1B status often have no option to but to apply for the O-1.

The purpose of this article is to provide practical suggestions for the experienced practitioner in preparing a successful O-1 petition, including best practices, potential pitfalls, and burgeoning trends.  This will include tips on preparing a petition that is easy for a USCIS adjudicator to approve, address a few common misconceptions, and discuss the impact of meeting at least three (3) criterion and the applicability of Kazarian[3] to O-1 processing.

First things first:

Make the O-1 petition easy for USCIS to want to approve

This may seem obvious, but if the USCIS adjudicator does not understand the beneficiary’s work or the significance of her accomplishments, the O-1 petition will probably not be approved.  The most striking aspects of the beneficiary’s “extraordinary ability” should be readily apparent, and should be in terms that have meaning for, and are likely to make an impression on, a lay person.  This means less “technical mumbo-jumbo,” as one Service Center Director lamented[4], and more “man on the street.”  If it is not something you, as the preparer will understand, you certainly cannot expect a USCIS adjudicator to understand.

While there are as many different approaches to preparing an O-1 petition as there are O-1 petitioners, the following suggestions may make your unique approach more adjudicator-friendly:

Reference Letters[5]

Of all the material contained in an O-1 petition, the reference letters usually present the biggest challenge.  In fact, the most frequently asked questions pertain to the letters:  how many, from whom, what should they include, what should they not include, and does USCIS even look at them?  There is no one clear answer to any of these questions (including whether or not USCIS reads them).  For an adjudicator-friendly approach, consider the following:

How Many?

Everything in balance.  The entire petition should not consist of letters, and the letters should not overwhelm the supporting documentation.  For example, including fifteen letters when there are a handful of publications and citations may elicit a “documentary evidence was not submitted to support the claim” Request For Evidence (RFE).  It often seems that beneficiaries want to have more letters because they can – it gives them a sense of control in ostensibly strengthening the petition, whereas they cannot just as easily obtain more publications, presentations, or citations to their findings.  However, more letters are not necessarily better, they are simply more.  For most cases, four or five letters should be more than sufficient.

From Who?

Household names.  Generally speaking, the names of the leading experts in most academic fields are not household names.  For example, while Emmanuelle Charpentier[6] or Andrea Ghez[7] may be well-known in their respective fields, their names are unlikely to elicit a “wow” response from the general public; that is, unless their status as Nobel Laureates is underscored.

Since many, many renowned experts are not Nobel Laureates, there needs to be another way to convey the referee’s reputation (without focusing the entire letter on her credentials).  Highlighting the referee’s title and institutional affiliation is effective if that institution is itself a household name.  The reputation of the institution and the likelihood that the adjudicator will be familiar with that reputation are essential to helping the adjudicator understand whose opinion is being considered.  For example, USCIS adjudicators would be more likely to give weight to a letter from General Electric or Pfizer Pharmaceuticals than to a well-established (but less well-known) biotech, and similarly more weight to a top-tier U.S. university than to an equally top-tier overseas institution, even if the referees’ credentials were comparable.

Keep in mind that even a letter from the most impressive, most renowned institution will not make much of an impact if signed by someone junior at that institution.  It is the title and the institution together that make an impression (and hopefully, make it easier for an adjudicator to want to approve).  Given that it is in part the institutional affiliation that creates the impression, more than one letter from an institution may do more harm than good as it may suggest that the beneficiary has a connection to the institution that disqualifies the referee as an objective source.  USCIS often notes in RFEs, denials, and liaison minutes that letters from peers, supervisors, graduate advisors, and other related parties may be biased and may therefore be given less probative value.[8]

About What?

Give meaning to the beneficiary’s work.  The reference letters are perhaps the best tool to convey the nature and significance of the beneficiary’s achievements.  This is not to say that a letter asserting the “major significance of beneficiary’s contributions” or the “truly groundbreaking results” is sufficient; in fact, such statements could be understandably categorized in an RFE or denial as “mere assertions” or “vague claims of contributions.”  A letter that recognizes “Dr. X as the first scientist to identify and characterize key attributes of CSCs within osteosarcoma” and/or credits her with “identifying the presence of CD133+ cells in tumor samples and established cell lines,” would not be helpful, unless the adjudicator also happens to be a cancer biologist.

Adjudicators review petitions from individuals in many different and distinct fields.  In any one day, it is possible that a USCIS adjudicator reviews petitions from such diverse occupations as writer, mechanical engineer, biochemist, painter, virologist, not to mention the many different specialties and sub-specialties.  Therefore, for the letters to be of value to the petition, they should explain the individual’s skills and expertise in terms that a lay person – someone with absolutely no knowledge of the field – can understand.  The letters should be a bridge from the unfamiliar to the everyday; they are an opportunity to give meaning to what otherwise may be perceived as “technical mumbo-jumbo.”

Taking the example from above, if the letter explains what CSCs are, why they are important – both in general and in osteosarcoma in particular – what the challenges were to identifying and characterizing the key attributes, how CD133+ cells fit in to all of this, what Dr. X did to successfully overcame these challenges, and the impact of Dr. X’s findings – that is a letter that should be given substantial weight and deference.  It is not “merely asserting” or “vaguely claiming” anything; rather, it is providing critical insight necessary to translate complex scientific and technical findings into concepts that a lay person can not only understand, but also appreciate.  Moreover, when such a letter is written by an individual with the expertise to explain the work in terms comprehensible to a lay person and with the credibility to opine on its importance, it can go a long way towards facilitating a positive adjudication.

Why Bother?

The question of “why bother” may seem strange following a detailed explanation of the importance of reference letters in framing the narrative.  Yet for anyone (or everyone) in receipt of substantive O-1 RFEs, that may be precisely the question one asks.  It often appears that the letters were not read, quoted out of context, and/or some version of the usually baseless and very dismissive “these letters have not established that the beneficiary’s work is original and these letters have fallen short of establishing that this work has made a major significant contribution.”   And so, all that effort, why bother?

We bother because the opinion of experts, and their explanation of the substantive merits of a beneficiary’s contributions, matter.  Indeed, discussing expert letters, the court in Muni v. INS, 891 F. Supp 440 (N.D. Ill. 1995) held that “better evidence of an alien’s extraordinary ability would be difficult to find.” In other words, who better than established experts to opine on whether original contributions are of major significance. More recently, the court in Chursov v Miller, No. 18-CV-2886 (PKC) (S.D.N.Y., May 13, 2019) chastised USCIS as “…the letters from professionals in the field were considered principally in isolation and without consideration of the light they shed on the significance of scholarly publications and presentations.”  That is often the issue; namely, that USCIS fails to consider the letters in connection with the primary source documentation. Yet AFM Chapter 22.2(i)(1)(A), notes that “evidence submitted to establish one criterion may be sufficient to satisfy more than one of the criteria.”  Thus, we bother because the detailed expert testimonials read in conjunction with the supporting documents provide the totality of evidence that should result in a favorable adjudication.

Supporting Documents

With USCIS requiring more and more documentation to establish a specific point, it is tempting to send boxes of documentation in support of the petition.   However, drowning a petition in documentation is not the best strategy as it makes it a much harder chore for the USCIS adjudicator.[9]   Moreover, it may also have the unintended consequence of masking the beneficiary’s achievements, particularly if it is not clear how some of the documentation relates to the beneficiary.

USCIS’ instructions for I-140 immigrant visa petitions in the extraordinary ability and outstanding researcher/professor categories provide relevant guidance for documenting O-1 petitions:[10]

  • If documenting the alien’s publications or citations of the alien beneficiary’s work, please highlight the alien’s name in the relevant articles;
  • It is not necessary to send the full copy of a dissertation, thesis, or research paper written by the alien beneficiary;
  • For articles in which the alien beneficiary’s work has been cited, include the title page and the portion(s) that cite the alien’s work and the “works cited” or bibliography;
  • Tab and label the evidentiary exhibits at the bottom of the first page of each exhibit, and provide a list of the evidentiary exhibits and the eligibility criteria that each exhibit is submitted to establish;
  • An exhibit that is being provided to meet multiple eligibility criteria should be so identified in the exhibit list.

When preparing the exhibits, keep in mind that the standard of proof in O-1 adjudications is the “preponderance of evidence.”[11]  The preponderance of the evidence standard means that, even if the adjudicator has “some doubts as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is ‘probably true’ or ‘more likely than not,’ the petitioner has satisfied the standard of proof.”[12]   This should mean that the expert letters’ descriptions of beneficiary’s achievements and recognition of its importance should suffice to demonstrate the criterion at 8 CFR §214.2(o)(3)(B)(5), and that documentation that beneficiary agreed to review specific manuscripts for a journal should suffice to document that she did in fact review them, thereby meeting the criterion at 8 CFR §214.2(o)(3)(B)(4).  However, in practice this is often not the case.  Nevertheless, this is the correct standard, and it may prove helpful to remind the adjudicator of the preponderance of the evidence standard in the cover letter.

Cover Letter

Whether an institution filing directly or an attorney filing on behalf of an institution, the cover letter is a wonderful opportunity to take the adjudicator by the hand and lead him directly to the most salient factors about the beneficiary’s eligibility for the O-1.   Start with a synopsis of the beneficiary’s eligibility in a concise paragraph to draw the adjudicator’s interest, demonstrating from the outset that this is a readily approvable case.  This synopsis should be written as one lay person to another, explaining what is most impressive about the beneficiary’s achievements and why.  Make it interesting, something someone will want to read.  While some practitioners prefer to start with a chronology of the beneficiary’s education and training, this does not always convey the significance of beneficiary’s accomplishments and may instead bury the more striking aspects of the beneficiary’s case on page twelve of a thirty-page cover letter.

The cover letter is a roadmap of the documentation included with the petition and should explain the relevancy of the documentation to the eligibility criteria.  Including summaries of the reference letters up top complements the initial synopsis, facilitating the adjudicator’s understanding and appreciation of the beneficiary’s achievements.  Then, as he begins to review the supporting documentation, it should all fall into place.  Moreover, while the supporting documents should be highlighted and tabbed, the cover letter can be used to underscore particularly noteworthy accomplishments relevant to each of the respective criteria.  Again, it should be concise, perhaps seven to ten pages at most.  Otherwise, it may be more tedious for an adjudicator to read, and important points may be missed.

True or False:

  1. Extensions can only be in one-year increments

False.  8 CFR §214.2(o)(12)(ii) states that an extension of stay may be authorized in increments of up to 1 year to continue or complete the same event or activity. However, an O petition and extension of status by a new employer or a change in previously approved employment by the same employer is a new “event” under 8 CFR 214(2)(o)(3) and may be approved for three years.[13]  For example, a Research Associate who was promoted to Assistant Professor, an Assistant Professor who was given additional responsibilities, or a Department Chair whose term has ended and is transitioning to a new position may all qualify for three-year extensions. In addition, it should be noted that 8 CFR §214.2(o)(3)(ii)’s definition of event includes the “academic year,” such that a new academic year may in itself be considered a new event.

A caveat to requesting a change in previously approved employment is that the newly resurrected deference memo[14] may not apply.  Specifically, the deference memo reminds officers that “when adjudicating a subsequent petition or application involving the same parties…and the same underlying facts, officers should defer to a prior determination that the beneficiary or applicant is eligible for the nonimmigrant classification sought.”[15]  The deference memo does not apply where there is a “material change in circumstances,”[16] such that with a request for a “change in previously approved employment” the prior petition may not be afforded deference.

  1. The position must require extraordinary ability

False.  8 CFR §214.2(0)(3)(i) states that the O-1 petition must be accompanied by evidence that the work which the alien is coming to the United States to continue is in the area of extraordinary ability and that the alien meets the regulatory criteria; it no where states that the job itself must require extraordinary ability.  In fact, employers may be reluctant to file an O-1 petition for a medical resident or fellows, or post-doctoral research associate because it is not apparent that the position itself requires extraordinary ability.  However, that is not the requirement.  The requirement is simply that the beneficiary has extraordinary ability in a specific field, and the O-1 is being sought to allow him to work in the related field.[17]

  1. The position cannot be permanent or tenure-track

False.  The O-1 is confusing on this point because it is not as explicitly dual intent as the H-1B or L-1 nonimmigrant categories.  However, the requirement of a residence abroad which the alien has no intention of abandoning is limited to those applying for O-2 status, not O-1.[18]   In fact, according to 8 CFR §214.2(o)(13), “the approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an O-1 petition, a request to extend a petition, or the alien’s application for admission, change of status or extension of stay.  The alien may legitimately come to the United States for a temporary period…and lawfully seek to become a permanent resident.”  It is interesting to note that this is the same language as that of 8 CFR §214.2(h)(16)(i) for H-1Bs and as that of 8 CFR §214.2(l)(16) for L-1s.

An important distinction between the O-1 and the H-1B and L-1 classifications is that an individual in O-1 status who travels during the pendency of an adjustment of status will be deemed to have abandoned the adjustment of status petition.  In order to travel during the pendency of an adjustment of status, an individual in O-1 status must apply for and obtain an Advance Parole travel document.  This is quite different than the rule for those in H-1B or L status, who may continue to travel based on an H-1B or L visa without abandoning the adjustment of status.[19]

  1. A reference letter can be used as the “consultation” letter

True.  For academic and research O-1 petitions, one of the reference letters can be used to satisfy the “consultation” or “peer group” requirement.  The regulations clearly note that the consultation can be “a written advisory opinion from a peer group (which could be a person or persons with expertise in the field)” presuming it discusses “the nature of the work to be done and the alien’s qualifications.[20]   Any one of the reference letters should easily fill this role.

  1. A petition on behalf of an instructor in the arts will be adjudicated under the O-1B standard

Should be “true,” and in fact, the AAO remanded a case in which the Vermont Service Center (VSC) held that an art teacher is a position in education, subject to the O-1A standard, and not a position in the arts, which would be the O-1B standard. [21]   This is important, given that O-1A is a much higher standard requiring sustained national or international acclaim, whereas for O-1B it is sufficient to demonstrate “prominence” in the field.  It would seem reasonable to presume that a beneficiary’s field should be defined by the area of claimed expertise, as long as she will be working in an area related to that expertise.[22]  In fact, O-1 petitions for non-arts teachers focus on their achievements in the academic field, not in the teaching of the academic field.  It is not clear why arts teachers would be treated any different.

According to the VSC decision, in order to qualify under O-1B, the proposed employment must qualify as an “entertainment event.”  The AAO disagreed, holding that VSC had no basis to find “that an alien with extraordinary ability in the arts is strictly limited to coming to the U.S. to provide services for an entertainment event.[23]    Indeed, while the term “entertainment event” appears nowhere in the regulations, the AAO found it dispositive that “academic year” does.  Moreover, the AAO held that the definition of “event” at 8 CFR §214.2(o)(3)(ii) applies to each of the O-1 sub-classifications, without distinction.  The petition was remanded to determine whether the arts teacher qualifies under the O-1B standard.[24]

Is Three Enough?

No discussion of extraordinary ability standards would be complete without addressing the age-old question of whether meeting three (3) of the evidentiary criteria is sufficient to demonstrate that the beneficiary qualifies for the O-1.  It is more than a decade since USCIS adopted the Kazarian decision and its “final merits analysis” in USCIS Policy Memo, “Evaluation of Evidentiary Criteria in Certain Form I-140 Petitions,” PM-602-0005.1 (December 22, 2010).  Notably, PM-602-0005.1 does not reference O-1 petitions, as it was written specifically for I-140 petitions, not I-129 petitions.  Nevertheless, the similarities between the O-1A and the Extraordinary Ability categories are manifold, and in the years immediately following the Kazarian decision, the AAO applied Kazarian’s two-part analysis to affirm denials of O-1 petitions.[25]   This practice appears to have ceased in 2014.

In its recent addition of an O-1 section[26] to its Policy Manual, USCIS clearly stated that something more than meeting three (3) criteria was warranted to grant O-1 classification.  Specifically, referencing the preamble to the final rule, it states that “The evidentiary requirements are not the standard for the classification, but are instead the mechanism for establishing whether the standard is met.[27] It cites to Matter of Chawathe[28] to hold that “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.[29]  USCIS’ reliance on Matter of Chawathe is curious, and perhaps open to challenge, as the decision upholds the preponderance of the evidence standard and chides USCIS for requiring more.  In other words, it does not appear to support the proposition for which USCIS is using it.  Nevertheless, following its cite to Matter of Chawathe, the Policy Manual concludes that “USCIS must determine eligibility based on whether the totality of the evidence submitted demonstrates that the beneficiary meets the relevant standard[30] (emphasis added).

Forewarned is forearmed.

Conclusion

The purpose of this article was to offer practical suggestions to (hopefully) improve O-1 outcomes.  These suggestions were geared at making it easier for the USCIS adjudicator to approve, not necessarily easier for us to prepare.  It was also meant to dispel certain myths about limitations on the O-1, and finally, to acknowledge the new age of extraordinary ability adjudications and what that may mean for future O-1 filings.

Suzanne B. Seltzer is the Principal of The Seltzer Firm, PLLC.  Ms. Seltzer recently completed her tenure as Vice Chair of the American Immigration Lawyers Association’s (AILA) USCIS Benefits and Policy Committee.  She was previously Chair of AILA’s Service Center Operations (SCOPS) Liaison Committee and served for many years on AILA’s Annual Conference Committee.  Ms. Seltzer also co-founded the New York Anti-Trafficking Network (NYATN) in 2002 and sat on its Steering Committee from 2002 – 2017. She regularly speaks and publishes on matters relating to immigration law.  Ms. Seltzer is ranked among the nation’s top 20 practitioners in the area of Immigration Law by LawDragon, and is also ranked in Chambers Global, Chambers USA, and included in Best Lawyers in America, New York Super Lawyers, and New York Magazine’s Best Lawyer’s in New York. She obtained her JD from Georgetown University Law Center, and her B.A. from the University of Pennsylvania.

 

[1] 8 CFR §214.2(o)

[2] 8 CFR §214.2(h)

[3] Kazarian v. USCIS, 596 F. 3D 1115, (9th Cir, 2010) adopted by USCIS as guidance in adjudicating immigration petitions under the extraordinary ability, outstanding researcher/professor, and exceptional ability categories.

[4] David Roark, Texas Service Center Director speaking at 2009 AILA Annual Conference in Las Vegas, NV.

[5] This article does not contain a detailed discussion of using reference letters to address the regulatory criteria.  For a more complete discussion, see How to Improve the Impact of Reference Letters on Establishing Extraordinary Ability, in Immigration Options for Academics and Researchers (AILA, January 2005).

[6] Nobel Laureate in Chemistry, 2020.

[7] Nobel Laureate in Physics, 2020.

[8] AILA – Nebraska Service Center Liaison minutes, AILA Doc # 09120164 (12/01/09)

[9] AILA Doc 10081961 – August 19, 2010. TSC liaison minutes voiced concerns about ‘extremely voluminous filings, often filling several crates…. including copies of entire books written by the Beneficiary as well as numerous copies of the same documents….filers should use their best judgment about what is required to support these applications, and please remember to explain how the documentation submitted satisfies the evidentiary criteria.’ (AILA Doc 10081961 – August 19,2010 TSC liaison minutes)

[10] USCIS Q&A “petition filing and processing procedures for form I-140, Immigrant Petition for Alien worker” June 25, 2009 (AILA doc 09062660)

[11] USCIS Adjudicator’s Field Manual (AFM) at Chapter 11.

[12] Field Manual at 11.1(c).

[13] ISD Teleconference of 10/3/2002, AILA InfoNet Doc. No. 02110470 (posted Nov. 4, 2002). (emphasis added)

[14] USCIS Policy Manual, Volume 2, Chapter 4, “Significance of Prior USCIS Approvals and Deference.”

[15] Id.

[16] Id.

[17] This was affirmed in Matter of [name not provided], File LIN 02 184 53385 (AAO, Sept 17, 2002) AILA Infonet Doc No, 02100344.

[18]  8 CFR §214.2(o)(1)(i) refers section 101(a)(15)(O)(ii) of the Act, aliens applying to assist in the artistic or athletic performance of an alien admitted under section 101(a)(15)(O)(i).

[19] 8 CFR § 245.4(ii)(C)

[20] 8 CFR §214.2(o)(5)(A).

[21] Matter of [name not provided], File EAC-10-073-50514 (AAO, Dec 6, 2010) (courtesy of Dan Berger)

[22] 8 CFR §214.2(0)(3)(i)

[23] Id.

[24] Interestingly, the AAO sustained a denial of a music teacher under the O-1A standard in Matter of [name not provided], File WAC-09-219-51079 (AAO August 2010).  However, unlike the case described above, it does not appear the O-1B standard was raised as an issue.  Instead, this was a change of employer, extension of status petition that, based on the decision, only included a copy of the initial filing.   As will be discussed below, this case was disturbing for its application of Kazarian.

[25] AAO decisions applying Kazarian two-part analysis can be found at https://www.uscis.gov/administrative-appeals/aao-decisions.

[26] Part M, Aliens of Extraordinary Ability or Achievement (O) Nonimmigrant Policies and Procedures, Chapter 4, Beneficiaries – Determining Eligibility (September 17, 2020).

[27] 59 FR 41818, 41820 (August 15, 1994).

[28] Matter of Chawathe, 25 I&N Dec 369, 376 (AAO 2010) is a precedent decision regarding the requirements for naturalization, holding USCIS to the preponderance of the evidence standard.

[29] Op. Cit n28

[30] Id.