New USCIS O-1 Policy Guidance
USCIS recently published a new section in its Policy Manual expanding guidance for evaluating O-1 eligibility.
O-1 visa status is for nonimmigrants with either extraordinary ability in the sciences, art, business, education, and athletics or extraordinary achievement in the industry of television or motion picture and who will work in their area of extraordinary ability or achievement. Specifically, this is new guidance for evaluating O-1 eligibility (including whether the evidentiary criteria has been satisfied and whether under the totality of the circumstances, the O-1 beneficiary has demonstrated the extraordinary ability or extraordinary achievement) and how and when the petitioner can rely on comparable evidence for demonstrating O-1 eligibility. This new Policy Guidance is controlling and supersedes prior guidance on these matters.
In Chapter 4, Section B of Volume 2: Nonimmigrants, Part M, Aliens of Extraordinary Ability or Achievement (O), USCIS instructs adjudicators to first determine whether the beneficiary meets the evidentiary requirements; this is whether the petitioner has submitted evidence that the beneficiary received (or, in some cases has been nominated for) a qualifying award or has met at least (3) of the criteria (see here page 20-21). In the case that these evidentiary requirements are met, the officer must then do a totality of the circumstances test considering whether on a preponderance of the evidence in the record qualifies the beneficiary for extraordinary ability or achievement. This is a separate test as the officer cannot grant the beneficiary a favorable determination/O-1 eligibility solely for fulfilling the criteria alone.
Step 1.: Officer determines if beneficiary fulfilled the required award or 3 criteria
Step 2: If the required award or 3 criteria is met, the officer does a totality of the circumstances test for determining whether the beneficiary has demonstrated by a preponderance of the evidence their extraordinary ability or achievement.
Now, if the evidentiary criteria are readily applicable to the beneficiary's occupation, the beneficiary should submit evidence from the provided list. However, if the evidentiary criteria is not readily applicable to the beneficiary's occupation, USCIS permits evidence comparable to the specific criterion to be submitted. If a particular criterion is not readily applicable to the beneficiary's occupation, the beneficiary may submit comparable evidence without having to prove that the majority or all of the criteria does not readily apply to their occupation. However, the beneficiary cannot seek to submit this comparable evidence simply because they cannot fulfill a particular criterion. The beneficiary will need to explain why that particular criterion is not readily applicable to their occupation AND why the submitted evidence is comparable to the criterion. The beneficiary will still need to fulfill three criteria.
While O-1A Beneficiaries and O-1B in the Arts Beneficiaries may use comparable evidence, O-1B Beneficiaries in Motion Picture or Television may not.
Comments on this new USCIS Policy Guidance are due October 19, 2020.
It is important to consider whether and how this issue may affect your case or current situation. If you have questions or concerns regarding how this issue may affect you, you may wish to consult with an Immigration Attorney. Attorney Rebecca Carcagno handles immigration law and is available on a consultation basis at (734) 999-0360.
***Please keep in mind that this blog posting is for educational purposes only (i.e., to give you general information and a general understanding of this immigration related matter); this blog posting does not provide specific legal advice and does not form an attorney-client relationship.***
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