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O-1 Visa Consultation Requirement & USCIS Decision to Accept Negative Consultations Letters Directly from Labor Unions

O-1 Consultation Requirement Generally

As part of the O-1 petition process, the petitioner must provide a consultation from an appropriate U.S. peer group, labor union, and/or a management organization. These will usually take the form of a written advisory opinion letter. The peer group, labor union, or organization can provide an advisory opinion letter that either is favorable or unfavorable to the petitioner and they can also provide a no objection letter. If the opinion is favorable then the letter should describe the alien beneficiary’s achievements in the field of endeavor and the work which will be done by the beneficiary. If the opinion is unfavorable then the letter should provide a statement outlining the facts that would support the negative conclusion of the opinion. The advisory opinion letter can also state that the peer group, labor union, or organization has no objection to having the O-1 petition approved.

While a consultation advisory opinion is generally required to be submitted in the petition for an O-1 visa, the requirement can be waived when the petitioner can establish that there is no appropriate peer group, labor union or organization in the beneficiary’s field of endeavor to provide the advisory opinion.

USCIS Accepting Negative Consultation Letters Directly from Labor Unions

On Friday, September 14, 2018 USCIS announced that effective immediately they would be accepting copies of negative consultation advisory opinion letters directly from labor unions. This does not change the petition process; the petitioner of the O-1 visas still must submit the advisory opinions in the O-1 petitions. USCIS will use the copies to compare with the advisory opinion letters provided by the petitioners in the O petition to make sure that advisory opinions are the same.  

The decision by USCIS is the result after meeting with several labor unions who expressed concerns about the consultation requirement process for O visas. In particular, the labor unions were concerned that petitioners had provided falsified opinion letters in O petitions where the conclusions of the letters were either favorable to the petitioner or that there was no objection, when in fact the labor unions had provided a negative advisory opinion letter.

Labor unions should only send negative consultation advisory opinion letters directly to USCIS, not favorable or no objection letters. The negative letters should be sent to UnionConsulationMailbox@uscis.dhs.gov and the labor union include the last five digits of the beneficiary’s passport number in the consultation letter so the letters can be matched with the correct O petitions.

By Amanda Cardwell

Amanda is an associate attorney at Reddy & Neumann PC and has been with the firm since 2015. Her practice covers all phases of the PERM Labor Certification process.