USCIS has increased the evidentiary burden for petitions for the O-1 Extraordinary Ability visa to mirror that for the EB-1 Extraordinary Ability visa.
Both the O-1 nonimmigrant and EB-1 immigrant visa classifications remain important and flexible methods of sponsoring outstanding talent in the United States. Unfortunately, USCIS backlogs and processing delays persist, and availability of other visa categories is limited, making O-1 and EB-1 visas even better alternatives for companies to employ foreign talent. That they can provide a speedier path to permanent residence also can be a highly coveted recruitment and retention tool.
An uptick in particularized challenges to individuals seeking O-1 Extraordinary Ability classification can be traced to a change by USCIS. A memorandum issued on January 21, 2022, by USCIS confirmed that it has overhauled its approach to adjudicating O-1A Extraordinary Ability and O-1B Extraordinary Achievement visa petitions. While the guidance helps spell out the path to qualifying for O-1 classification, it also increases the evidentiary burden in O-1 visa petitions to mirror the agency’s approach to adjudicating EB-1A Extraordinary Ability petitions.
USCIS relies on a two-part analysis set out in Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Step one evaluates whether the petitioner has simply presented evidence satisfying three criteria. In step two, the petitioner must persuade the government that the evidence actually demonstrates outstanding achievement as compared to relevant peers. Here are some of key considerations in evaluating the viability of an O-1 or EB-1 petition:
- An individual’s “field” must be carefully defined and clearly articulated. Critical but often overlooked, petitions should include a carefully defined field that is clearly articulated frames the evidence in the light most favorable to the petitioner or applicant and in a manner that is easily understood by a reviewing officer.
- The Significant and Original Contribution criterion always should be argued. The petitioner is expected to provide objective evidence (i.e., work product) and subjective evidence of significance (i.e., recognition in the field). Providing a robust argument that an individual has made original contributions of major significance to their respective field can help mitigate the chance of receiving an Request for Evidence or a Notice of Intent to Deny from USCIS.
- Testimonial letters must be specific. Carried over from the prior administration, dismissing the probative value of testimonial letters submitted to corroborate the achievements of an individual continues. As this is one of the most important pieces, and sometimes the only piece, of evidence a petitioner can provide to corroborate an individual’s contribution or achievement in their field, it is critical that testimonial letters must be carefully drafted with specificity, describing in detail (1) the individual’s achievement and (2) why it represents a significant development.
- Published Materials are vital evidence for EB-1B Outstanding Researchers. Petitioners should keep in mind that the EB-1B Outstanding Researcher visa classification differs slightly in regulatory criterion and overall eligibility standard from both O-1 and EB-1A visa petitions. The EB-1B requires petitioners to show “international recognition” for outstanding research in the field. In addition to the considerations above, Outstanding Researcher petitions should include a robust record of peer citation to the individual’s work and specific references to the individual and their work in trade publications and online media. These are a crucial method of demonstrating that the individual’s research has been widely recognized in their respective field.
- Individuals in STEM-related fields have an advantage. USCIS typically take a favorable look at accomplished individuals in STEM-related fields because STEM workers play a key role in sustained growth and stability in the U.S. economy.
Jackson Lewis attorneys are available to assist in evaluating, preparing, and filing petitions for outstanding researchers and individuals with extraordinary ability.