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Law360 (October 19, 2020, 2:38 PM EDT )
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| Christy Turovskiy |
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| Douglas Halpert |
The business is adamant that it needs to bring highly accomplished executives, engineers, designers, scientists or other talent on board. An excellent candidate who is currently abroad has been identified. However, recent presidential proclamations have shut down H-1B and L-1 work visa processing through at least Dec. 31 for most visa applicants.
The O-1 extraordinary ability work visa may be a quick and viable alternative, provided the foreign national meets certain lofty standards. A common misconception is that one must be a Nobel Peace Prize winner or otherwise world famous to receive an O-1 visa. This is not the case.
This article provides an overview of the way in which publicly traded and privately held companies can appropriately use the O-1 visa as a solution. While the O-1 visa category may be a better option than ever before, it also presents some obstacles that demand serious consideration and careful case strategy.
O-1 Status as an Often-Overlooked Solution
On case strategy phone calls with HR representatives and direct managers, the discussion may focus on a foreign national employee who is running out of time on an H-1B or L-1 visa. Or perhaps the individual was not selected in the H-1B cap lottery process.
Maybe the individual's status is one that only allows for nonimmigrant intent. The company wishes to sponsor the individual for a green card, or change the employee's status to one that allows dual intent, foreign travel and reentry.
In this scenario, O-1 visa sponsorship may be a valuable option because O-1 status carries with it many benefits. Unlike H-1B or L-1 status, O-1 status can be renewed indefinitely.[1] Furthermore, O-1 status provides a level of dual-intent protection, providing greater flexibility for pursuing a green card and traveling abroad after an immigrant petition is filed.[2]
According to Title 8 of the Code of Federal Regulations, Section 214.2(o)(13):
Additionally, an approved O-1 petition can be an excellent way for a beneficiary to see whether they might find success in an EB-1-based green card petition — i.e., EB-1A, based on possessing extraordinary ability, or EB-1B, based on being an outstanding researcher or professor.[An] alien may legitimately come to the United States for a temporary period as an O-1 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.
An O-1 approval notice can support an EB-1 petition by showing the EB-1 adjudicating officer that the U.S. Citizenship and Immigration Services found the beneficiary to hold extraordinary ability in a different visa category. [3]
Finally, the O-1 visa option can help individuals abroad who, though otherwise qualified, are unable to obtain a new H-1B, L-1, or J-1 visa at a U.S. embassy because of pandemic-related holds on visa processing.
O-1 visa applicants can also often make strong arguments to overcome the ongoing region-specific, pandemic-related travel restrictions. In certain regions — i.e., the Schengen region — U.S. embassies are currently interpreting the Trump administration's restrictions as prohibiting visa issuance except where the applicant qualifies for a national interest exception visa waiver. O-1 visa applicants in the impacted regions will likely better qualify for the waiver than those in other nonimmigrant classifications.
The request for a national interest exception visa waiver is also more likely to be approved for an applicant whose O-1 classification has already been approved, as this bolsters the argument that his or her extraordinary abilities are urgently needed in the U.S.
Framework of O-1 Status and General Eligibility
To qualify for O-1 status, a sponsoring petitioner — employer or agent — must demonstrate that the individual holds extraordinary ability within the field of expertise by sustained national or international acclaim. Whether applying for O-1A status — extraordinary ability in science, education, business, or athletics — or O-1B status — extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry — the filing must meet very lofty standards to prove that the candidate is essentially among the best of the best.
For O-1A status, extraordinary ability in the fields of science, education, business, or athletics generally means a level of expertise that shows the beneficiary is one of the small percentage who has risen to the very top of their field of endeavor.
For O-1B status, extraordinary ability in the field of the arts means distinction. Distinction is defined as a high level of achievement evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that a person described as prominent is renowned, leading or well-known in the field.
Furthermore, to qualify for O-1B status in the motion picture or television industry, the beneficiary must demonstrate extraordinary achievement. This means a very high level of accomplishment as evidenced by a degree of skill and recognition significantly above that ordinarily encountered, to the extend the person is recognized as outstanding, notable or leading in the field.
Unless fitting within a specific exception — for example, being nominated for or awarded an Academy Award, an Emmy, Grammy or Director's Guild Award, or receiving a Nobel Peace Prize — the beneficiary must meet at least three out of either eight potential criteria in the case of an O-1A petition or six potential criteria in the case of an O-1B petition.
The government officer look to see if the filing includes a consultation or written advisory opinion from a U.S. peer group or person with expertise in the beneficiary's area of ability that meets certain specific requirements.
Trends and Pitfalls in O-1 Adjudication
In requests for evidence or notices of intent to deny issued by USCIS, officers in O-1 cases may fabricate ultra vires requirements that seasoned immigration attorneys must identify and push back against.
For example, in extraordinary ability petition filings, USCIS commonly challenges evidence of original contributions of major significance in the field by referencing the beneficiary's hundreds of citations but then discounting them, stating:
In this type of a challenge, where USCIS arbitrarily sets a standard that is not actually in any of the statutory requirements or regulatory guidance, attorneys must strongly advocate for adherence to the true USCIS rules in the petitioner's response.the evidence does not substantiate original contributions of 'major significance' in a field whose leading scientists (according to Google Scholar) have garnered citations numbered well in the thousands.[4]
In a response to a USCIS challenge, attorneys must try to educate the officer as to why making such a claim is outside the scope of the officer's adjudication authority.
Attorneys should help the petitioning organization assemble an arsenal of research and other corroborating evidence, or expert testimonials, which can be used in such situations to demonstrate why thousands of citations may not be needed within this particular field to prove the major significance of the beneficiary's original contributions, point to the evidence that is provided and explain clearly why it meets the requirements.
Another common example can be seen with regard to the authorship of scholarly articles criterion, when USCIS officers allege the following:
This again is misguided. Attorneys should zealously push back on this incorrect USCIS standard. There is no statutory requirement that so-called major media can only be print — not web-based — media.The petitioner submitted several articles that were posted in online web portals or at a conference, which does not meet the plain language of this criterion. ... The plain language of this criterion requires authorship of scholarly articles in the field of endeavor that were published in professional or major trade publications or other major media; articles in web portals or domains are not publications.
There are many readily available studies that can be used in response to this type of challenge to show the traditionalist officer that top publications are frequently highly circulated precisely through credible major media sources that naturally have a vast online presence.
Furthermore, many challenges unfortunately are simply the result of the officer's lack of review or consideration of the evidence provided. This is particularly true when challenges utilize boilerplate text from a template, copied and pasted into countless challenges without specific references to the underlying filing or the evidence that was already submitted.
Especially since October 2017, when USCIS issued a memo rescinding a historic 2004 policy that required officers to give deference to prior adjudications in nonimmigrant extension petitions, there has been a noticeable spike in challenges and denials of nonimmigrant status filings, including what previously would have been straightforward status extension requests
When officers have obviously disregarded the arguments or evidence provided in the underlying filing, various attorneys utilize different tools in responding. Some attorneys believe this the best approach is duplicating the evidence to provide it again and respectfully — or not so respectfully — explaining that the evidence was provided in the initial filing but that they are providing it again since it seems as though the officer may have overlooked it.
Some attorneys explain to the officer why the evidence submitted was sufficient as is, and that it was not considered before but must be considered at this time. Some attorneys blend these strategies together, and, if possible add new evidence to further cement their claims. Often the way that USCIS words its request for evidence or notice of intent to deny, and the arguments included, can guide counsel as to the approach that will provide the client with the greatest likelihood of success in the challenge response.
Final Considerations
While the O-1 visa process may be rigorous and potentially time consuming, it can have significant benefits both to the sponsoring organization and the beneficiary. Approval may provide the beneficiary with greater flexibility in his or her authorized period of stay in the U.S. Also, if the beneficiary is stuck abroad during the pandemic and subject to any of the currently active presidential proclamations restricting visa issuance for return, an O-1 visa petition may be a more feasible path to reentry, as no one can predict whether the proclamations will be extended beyond the end of the year.
With so much uncertainty in the current world of immigration and when so much is at stake, it is always helpful to analyze carefully all available routes. The O-1 visa has often been overlooked for numerous reasons, including a simple misunderstanding or misapplication of the legal requirements. Companies should consider this option more seriously and more frequently when evaluating potential immigration solutions for valued critical employees and star candidates.
Christy Turovskiy is a senior associate and Douglas Halpert is a partner at Hammond Neal Moore LLC.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] O-1 status may be renewed indefinitely in increments of up to three years or one year at a time, depending on the circumstances.
[2] Once an I-485 permanent residence case is filed, however, there will be a no-travel period unless the candidate elects consular processing.
[3] While an O-1 assessment may yield a finding of ineligibility at an early stage of someone's career, early analysis and experienced case strategy planning may help the beneficiary plan career steps that will help them meet the requirements in a future O-1 petition (and/or EB-1 green card petition filing).
[4] Quote pulled from a collection of various requests for evidence issued by USCIS in recent years.
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