Although no new laws or regulations pertaining to the O-1 have been passed during the Trump Administration, there have been a series of changes mainly through policy memoranda guiding the adjudicative measures of the USCIS. These changes have had a significant impact on the O-1 review process. We summarize below some of the key policy changes that have occurred recently.
Recent Changes to the O-1 Visa
No More RFEs
- While the application process, O-1 forms, and O-1 fees remain intact, USCIS has made subtle but impactful changes in the review of the O-1 petition. As of September 11, 2018, USCIS exercises its discretion as to whether to issue a request for further evidence (RFE) seeking clarification or additional documentation from the O-1 visa applicant, or to simply issue a denial if the O-1 criteria is not included on the initial O-1 petition (application form) submission to USCIS. As such, it is critical for both employers and employees to ensure they have strong and probative evidence of O-1 criteria at the time of the O-1 submission so as to not risk a denial. To read the full Policy Memorandum, click here
Direct Emailing of Negative Consultations
- Beginning September 14, 2018, USCIS decided to accept copies of negative consultation letters directly from labor unions relating to current or future O-1 nonimmigrant visa petitions. A consultation letter from a U.S. peer group, labor organization, and/or management organization is generally required for petitions in the O-1 visa classification. Typically, the O-1 petition submission will include the consultation letter as part of the documentation packet submitted to USCIS offices for review.
- Now, the labor union can address the negative consultation directly with USCIS without first providing it to the O-1 applicant to rebut. This reflects an effort to curb fraud suspected by O-1 applicants who may “edit” the negative consultation prior to the O-1 submission. USCIS allows labor unions to submit the negative consultation directly to a USCIS email address dedicated to that purpose.
USCIS to Apply Same Scrutiny to New and Extension of O-1 Petitions
- As of October 23, 2017, USCIS no longer gives deference to prior O-1 petitions when adjudicating O-1 extensions and must apply the same level of scrutiny to an O-1 petition extension as it would to a brand new O-1 petition. The PM guidance provides that this same level of scrutiny will be applied even where the petitioner, beneficiary, and underlying facts are unchanged from a previously approved petition. While adjudicators may ultimately reach the same conclusion as in a prior decision, they are not compelled to do so as a default starting point. The burden of proof to establish eligibility for an immigration benefit always lies with the petitioner.
USCIS Interprets O-1 Criteria and Regulations More Literally
- USCIS is reading O-1 criteria far more strictly and disallowing evidence often used in the past. For example, one criterion requires “published material in professional or major trade publications or major media about the alien, relating to the alien’s work in the field . . ..” In the past, USCIS would accept media reports about the applicant’s work, even if the applicant was not directly named. Now, USCIS requires the media report to discuss the applicant directly, not just his or her work.
- Another example relates to the criterion, “authorship of scholarly articles in professional journals or other major media in the field”. USCIS will now deem articles published in general media, rather than in media for the specific field, too broad and not scholarly. A recent decision illustrates this point. A soccer coach’s teaching manual was considered an “athletic” contribution and failed to meet the criterion for original “scientific, scholarly, or business-related contributions.”
- USCIS is also requiring more detailed employment agreements, and reviewing them more carefully. High salary is one criterion used by USCIS to indicate extraordinary ability. Previously, USCIS readily accepted Bureau of Labor Statistics (BLS) data to demonstrate “average” and “high” salaries in an occupation. Today, USCIS views BLS data as too generalized and wants field-specific comparisons. USCIS regularly accepted employer or agent statements regarding compensation packages, including commissions, housing, and bonuses. However, recently, USCIS has required specific corroborating evidence to demonstrate both the value of the remuneration and that the specific type of non-salary remuneration is “high” in comparison.
- Last, USCIS does allow “comparable evidence” to support O-1 petitions in cases where the occupations do not measure achievement/distinction in the manner USCIS O-1 criteria dictates. Unfortunately, USCIS is far more stringent on this standard. First, USCIS requires the applicant to address every single criterion and more thoroughly explain why each does not apply to the occupation. Second, USCIS now requires corroboration, negating testimonials and rejecting the explanations of demonstrated experts in the field. Finally, USCIS will take the time to surf the internet and use generalized terminology to conclude certain criteria could apply to the occupation.
Issuance of Notice to Appear
- On June 28, 2018, USCIS issued a new Policy Memorandum whereby, effective immediately, USCIS adjudicators have been instructed to issue a Notice to Appear before an immigration judge (“NTA”) to all beneficiaries whose lawful status expires while a petition or request is pending before USCIS.
- The initial focus is on applications (as opposed to petitions) and the policy affects adjustments of status (Form I-485), applications for naturalization (Form N-400), and applications to extend or change non-immigrant status (Form I-539), among others.
- Employment-based petitions (including those based on Forms I-129 and I-140) are not included in the initial June 28, 2018 roll-out (nor are humanitarian applications and petitions).
- We will continue to monitor developments with respect to the NTA policy to see if the reaches of the new policy expand to also affect O-1 beneficiaries who apply for the O-1.
These changes have important implications on how to prepare an O-1 petition. For example, when preparing and submitting an O-1 petition, it is essential to ensure the evidence squarely supports every word listed in the criteria, and to explain how the evidence meets the criteria (e.g., if the criteria is not worded for athletes, explain why the documentation submitted is acceptable to the athletic field). Also, it is prudent to include any actual employment agreement and to ensure that the employer reviews such agreements carefully, so they are thoroughly consistent with all details and supporting documentation included in the O-1 visa petition. Discrepancies can arise when the petition provides more detail than the employment agreement, i.e. consistency throughout the various components of the evidentiary materials is key. Finally, when preparing and submitting an O-1 petition, it is critical to research the field on the internet to be able to rebut any internet research findings USCIS might use to deny the O-1 petition. Furthermore, USCIS adjudicators are not experts on the applicant’s field of work, and therefore, it is important to define, specify, explain and essentially “spoon feed” any industry specific standards and norms within the petition. Petitions that fail to include this may either be warranted with an RFE or risk subsequent denial of the petition.
Although the standards and measures for obtaining an approval of O-1 petitions has become more difficult under the Trump Administration, obtaining one is still the same as long as one fully understands the various changes and ensures to address them by preparing well. Given the new USCIS policy of denying petitions where the criterion is not met without an RFE, it is critical to prepare a well-researched O-1 petition with a clear and concise discussion of the criteria and attached corroborating documentation for each criterion, i.e. leave no questions unanswered and submit documentation that specifically addresses the criteria. It is more important than ever to make sure that you consult with an immigration attorney experienced in the preparation of the O-1 visa.
Should you wish to speak to one of our immigration attorneys about the O-1, contact us at 718-539-1100 or info@jckimlaw.com.