USCIS’s new guidance for O-1 petitions provides a detailed overview of the different O-1 classifications: O-1A, O-1B Arts, and O-1B Motion Picture and Television (“MPTV”). The guidance also provides detailed standards for adjudicating O-1 petitions under each O-1 classification and the use of comparable evidence to satisfy one or more O-1 criterion.
For example, the guidance expands the applicability of the O-1B MPTV category to encompass “streaming movies, web series, commercials and other programs with formats that correspond to more traditional motion picture and television productions.” The O-1B MPTV category, according to USCIS, is also proper where the “beneficiary will perform services for a motion picture or television productions while in the United States” even if the beneficiary will also be engaged in artistic services outside of the MPTV industry. Therefore, employers and agents wanting to sponsor artists will need to carefully assess the artist’s portfolio of work and every proposed engagement in the United States to determine whether they fall within the O-1B MPTV, which carries more stringent consultation requirements than the O-1B Arts counterpart.
Further, the guidance discusses the terms “field” and “area of extraordinary ability,” for which there is no statutory or regulatory definition. USCIS has expanded its understanding of these terms to encompass “multiple related occupations” that involve “shared skillsets, knowledge, or expertise.” This is welcome news for individuals whose work or portfolio does not neatly fall into one occupational classification if they can demonstrate the relatedness of the different occupations.
The guidance also clarifies how the agency will determine whether the beneficiary satisfies the relevant O-1 “extraordinary ability” or “extraordinary achievement” regulatory definition. According to USCIS, “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.” Instead, USCIS will determine eligibility based on the “totality of the evidence.” This resembles the standard used by USCIS to evaluate eligibility under the O-1’s immigrant visa counterpart, the EB-1A classification, that was litigated and resulted in the U.S. Court of Appeals for the Ninth Circuit’s decision in Kazarian v. United Citizenship and Immigration Services, 596 F.3d 1115 (9th Cir. 2010). Until now, it was unclear whether USCIS applied the same two-step Kazarian analysis used by the agency in EB-1A petitions to O-1 petitions.
Therefore, the evidentiary burden on individuals seeking O-1 classification may be higher as they must produce evidence and persuade USCIS that this evidence demonstrates the beneficiary’s “extraordinary ability” or “extraordinary achievement.” On the other hand, the use of comparable evidence has been expanded where the petitioner explains “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.”
Surprisingly, the guidance references specific examples and sources that petitioners and beneficiaries may rely on to demonstrate O-1 eligibility. For researchers, this includes references to impact factors and h-indexes. For sales and marketing professionals, this includes how their presentation at a trade show may be considered comparable evidence of a “scholarly publication.” Finally, throughout, particular emphasis is placed on how the guidance is relevant to beneficiaries in STEM-related fields.
The new guidance will impact how USCIS adjudicates O-1 petitions in each classification in various ways. The guidance expands the scope of candidates who may qualify for an O-1 visa under each classification. But it also increases the evidentiary requirements to qualify for an O-1 visa. Jackson Lewis attorneys are available to discuss and help assess whether the O-1 visa may be an appropriate option for you or your business.