Outstanding Service, Extraordinary Results

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O-1: Going from Oy Vey to Okay!


The O-1 is often a visa of last resort. Short of evidence of a Nobel Prize, it is one of the more document-intensive non-immigrant categories and 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 judge the work of others, and so on and so forth.

Given the effort, why would you do an O-1[2] when you can do an H-1B[3]? This used to be an easy decision – never. Whereas the O-1 requires demonstrating the lofty ‘extraordinary ability’ standard, the H-1B required 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)[4], but until fairly recently, most H-1Bs could be prepared and filed within a day. 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[5]. 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’[6], the advantages to the institution seem to be dwindling. In the past few years, the H-1B has become very tightly regulated; 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. Not just its insistence that all H-1B associated fees (legal and filing) should be treated as a “business expense”[7], but also the delays in issuing prevailing wage determinations and in certifying the LCA – gone are the days of the instant LCA and the ability to call the state workforce agency to expedite or question a 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 if and when the O-1 offers 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 which there is no time to wait for the LCA and/or prevailing wage determination. And separate and apart from these issues, 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[8] and those at the end of 6 years in H-1B status[9] 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 possibility that the Kazarian[10] decision and policy guidance[11] will infect 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 presented 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[12], and more ‘man on the street.’ If its 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:

a. Reference Letters[13]

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), but for an adjudicator friendly approach, consider the following:

1. 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, five letters should be more than sufficient.

2. From Who?
Household names. Generally speaking, the names of the leading experts in most academic fields are not household names. For example, while Andre Geim[14] or Richard Heck[15] 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 has often noted 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.[16]

3. 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 also not be helpful, unless the adjudicator 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.

b. Consultation Requirement

The O-1 requires a written consultation from an appropriate U.S. peer group, labor and/or management organization[17]. In the academic context, there is unlikely to be a relevant union or trade organization; however, the regulations allow the written consultation to come from ‘a person or persons with expertise in the field,'[18] very much like the reference letters described above. In fact, one of the reference letters can be used to satisfy the consultation requirement, as long as it addresses ‘the nature of the work to be done and the alien’s qualifications.'[19]

c. 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.[20] 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:[21]

  • 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.’[22] 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.”[23] 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.

d. 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 new position by the same employer is a new ‘event’ under 8 CFR 214(2)(o)(3) and may be approved for three years.[24] 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 may all qualify for three year extensions.

2. 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 nowhere 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 fellow, 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.[25]

3. 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.[26] 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.[27]

4. 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.'[28] Any one of the reference letters should easily fill this role.

5. A petition on behalf of an instructor in the arts will be adjudicated under the O-1B[29] 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.[30] 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.[31] 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.”[32] 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.[33]

Kazarian

No discussion of extraordinary ability standards would be complete without at least a nod at the Kazarian decision. It is a topic in and of itself, and worthy of its own article.[34] Kazarian is a ninth circuit decision sustaining the denial of an I-140 petition for an alien of extraordinary ability. In its decision, the court made reference to ‘a final merits analysis.’ However, it proved no commentary or guidance on how this ‘final merits’ analysis should be applied. Nevertheless, USCIS used the occasion of the Kazarian decision to issue the USCIS Policy Memo, “Evaluation of Evidentiary Criteria in Certain Form I-140 Petitions,” PM-602-0005.1 (December 22, 2010) [35], providing its own interpretation of the ‘final merits analysis’. This policy memo establishes a two part analysis of, inter alia, extraordinary ability to determine first, if the beneficiary meets a sufficient number of criteria, and second, having met the criteria, does the adjudicator believe that the beneficiary qualifies as an alien of extraordinary ability.

The shortcomings of USCIS’ policy memo are not the subject of this article, particularly as it does not appear that USCIS is applying Kazarian to O-1 petitions. The policy memo described above was written specifically for I-140 petitions, not I-129 petitions. Nevertheless, the similarities between the O-1A and the immigrant Extraordinary Ability category are manifold, and it is certainly possible that the policy memo will find its way to I-129 petitions. There has already been at least one AAO decision applying Kazarian to affirm the denial of an O-1.[36] In addition, the AFM section on O-1s clearly states that an adjudicator “cannot make a favorable determination simply because the petitioner has submitted three of the forms of documentation…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.”[37]

Forewarned is forearmed.

Conclusion

In the academic and research world, the O-1 is a fact of life. 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.


[1] Suzanne B. Seltzer the Chair of the American Immigration Lawyer’s Association (AILA) USCIS Benefits & Policy Liaison Committee, is a member of AILA’s InterAgency Liaison Committee, and recently completed her tenure as the Vermont Service Center (VSC) liaison and as a NAFSA Regulatory Ombudsman. Ms. Seltzer is listed in Best Lawyers in America, Chambers USA, New York SuperLawyers, and the International Who’s Who of Corporate Immigration Lawyers. A magna cum laude graduate of the University of Pennsylvania, Ms. Seltzer received her law degree from Georgetown University’s Law Center (cum laude).

[2] INA §101(a)(15)(O)(i)..

[3] INA §101(a)(15)(H)(i)(b)..

[4] INA §212(n)(1).

[5] INA §§214(g)(5)(A); 214(g)(5)(B).

[6] See INA §214(b)(indicating no presumption of immigrant intent); 8 C.F.R. § 214.2(h)(16).filing of labor certification or preference petition prohibited as a basis for denial of H-1B petition).

[7] See 20 C.F.R. §655.731(c)(9)(ii) (prohibiting recoupment of “business expense(s) of the employer (including attorney fees and other costs connected to the performance of H-1B program functions which are required to be performed by the employer, e.g., preparation and filing of LCA and H-1B petition)).”

[8] See INA §212(e)..

[9] INA §214(g)(4)..

[10] 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.

[11] USCIS Policy Memo, “Evaluation of Evidentiary Criteria in Certain Form I-140 Petitions,” PM-602-0005.1 (December 22, 2010)..

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

[13] 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).

[14] Nobel Laureate in Physics, 2010.

[15] Nobel Laureate in Chemistry, 2010.

[16] AILA – Nebraska Service Center Liaison minutes, published on AILA InfoNet at AILA Doc No. # 09120164 (Dec. 1, 2009)

[17] 8 CFR §214.2(o)(3)(v)(B)(5)(i)(A) & (B).

[18] Id.

[19] Id.

[20] AILA InfoNet Doc No. 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 InfoNet Doc. No. 10081961 – August 19,2010 TSC liaison minutes).

[21] USCIS Q&A “petition filing and processing procedures for form I-140, Immigrant Petition for Alien worker” June 25, 2009 published on AILA InfoNet at Doc. No. 09062660).

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

[23] Field Manual at 11.1(c).

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

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

[26] 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).

[27] 8 CFR 245.2(a)(4)(ii)(C)

[28] 8 CFR §214.2(o)(5)(A).

[29] See 8 C.F.R. §214.2(o)(1)(ii)(A)(2) (requiring “a demonstrated record of extraordinary achievement”).

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

[31] 8 CFR §214.2(0)(3)(i)

[32] Id.

[33] 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.

[34] The Kazarian decision and USCIS’ Kazarian guidance are the topic of a separate article in this book

[35] Published on AILA InfoNet at Doc. No. 11020231.

[36] Matter of [name not provided], File WAC-09-219-51079 (AAO August 2010)

[37] AFM § 33.4(d)