O-1 Visa – New USCIS O-1A and STEM guidance
Often times reasonable people can disagree on what the term “extraordinary” actually means, especially in the context of immigration. With this in mind USCIS recently updated its policy guidance regarding criteria and evidence used to determine eligibility for O-1A nonimmigrants of extraordinary ability, with a focus on persons in science, technology, engineering, or mathematics (STEM) fields.
An Extraordinary Beginning
Generally speaking, O-1 visas are available to individuals who have “extraordinary ability” in the sciences, arts, education, business or athletics, which has been demonstrated by sustained national or international acclaim, and for those who have a demonstrated record of extraordinary achievement in the motion picture or television industry, and are planning to come to the USA to work in that same field.
More specifically, the regulations define “extraordinary ability” as applied to the O-1 classification as follows:
- In the field of science, education, business, or athletics: a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor.
- In the field of arts: distinction, defined as a high level of achievement in the field of arts, as 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 of arts.
- In the motion picture or television industry (including both performers and others): a very high level of accomplishment, as evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent that the person is recognized as outstanding, notable, or leading in the motion picture or television field.
In whichever field the case may be, an O-1 beneficiary’s achievements must have been recognized in the field through extensive documentation.
Extraordinary and SySTEMic Evidence
An O-1A petition must be accompanied by some impressive backup evidence. In it’s new Appendix [2 USCIS-PM M.4, Appendices Tab], USCIS attempts to lay out the groundwork for evidence and important considerations it’s officers make in assessing all that evidence. While many of the listed examples and considerations are especially relevant to beneficiaries in fields related to science, technology, engineering, or mathematics (STEM), the guidance in the appendix may be relevant to any O-1A petition, as the evidentiary requirements are the same for all persons in the sciences, education, business, and athletics.
Evidence for O-1A petitions normally consist of (or in some categories nomination for) a qualifying award (think Nobel Prize), or at least three alternate forms of evidence such as:
- Documentation of the beneficiary’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor; Some examples include awards from well-known national institutions and well-known professional associations, certain doctoral dissertation awards and Ph.D. scholarships, and awards recognizing presentations at nationally or internationally recognized conferences.
- Documentation of the beneficiary’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields; Some examples would include membership in the Institute of Electrical and Electronics Engineers (IEEE) at the IEEE fellow level requires, in part, that a nominee have “accomplishments that have contributed importantly to the advancement or application of engineering, science and technology, bringing the realization of significant value to society,” and nominations are judged by an IEEE council of experts and a committee of current IEEE fellows.
- Published material in professional or major trade publications or major media about the beneficiary, relating to the beneficiary’s work in the field for which classification is sought, which must include the title, date, and author of such published material, and any necessary translation; Some examples would include Professional or major print publications (newspaper articles, popular and academic journal articles, books, textbooks, or similar publications) or major online publications regarding the beneficiary and the beneficiary’s work.
- Evidence of the beneficiary’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization for which classification is sought; Some examples would include reviewer of abstracts or papers submitted for presentation at scholarly conferences in the respective field, peer reviewer for scholarly publications, member of doctoral dissertation committees, or peer reviewer for government research funding programs.
- Evidence of the beneficiary’s original scientific, scholarly, or business-related contributions of major significance in the field; Some examples would include published materials about the significance of the beneficiary’s original work, testimonials, letters, and affidavits about the beneficiary’s original work, documentation that the beneficiary’s original work was cited at a level indicative of major significance in the field, and patents or licenses deriving from the beneficiary’s work or evidence of commercial use of the beneficiary’s work.
- Evidence of the beneficiary’s authorship of scholarly articles in the field, in professional journals, or other major media; Some examples would include publications in professionally-relevant journals, or published conference presentations at nationally or internationally recognized conferences. In the academic arena, a scholarly article reports on original research, experimentation, or philosophical discourse. It is written by a researcher or expert in the field who is often affiliated with a college, university, or research institution and the article is normally peer-reviewed. In general, it should have footnotes, endnotes, or a bibliography, and may include graphs, charts, videos, or pictures as illustrations of the concepts expressed in the article. In non-academic arenas, a scholarly article should be written for learned persons in that field.
- Evidence that the beneficiary has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation; Some examples would include a senior faculty or senior research position for a distinguished academic department or program, a senior research position for a distinguished non-academic institution or company, a principal or named investigator for a department, institution, or business that received a merit-based government award, such as an academic research or Small Business Innovation Research, a member of a key committee within a distinguished organization, a founder or co-founder of, or contributor of intellectual property to, a startup business that has a distinguished reputation, or a critical or essential supporting role for a distinguished organization or a distinguished division of an institution or company, as explained in detail by the director or a principal investigator of the relevant organization or division.
- Evidence that the beneficiary has either commanded a high salary or will command a high salary or other remuneration for services, as evidenced by contracts or other reliable evidence. Some examples would include tax returns, pay statements, a contract, a job offer letter, or other evidence of prospective salary or remuneration for services.
If the listed criteria are not readily applicable to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish eligibility. In other words, the evidentiary lists in the regulations and policy guidance are strong suggestions, but one not need limit themselves to them if there is other extraordinary proof from a unique field. After all, the vast realm of the extraordinary fields are hard to summarize in a few pages or regulations and examples, and any attempt to do so would stifle extraordinary endeavors.
For comparable evidence to be considered, the petitioner must explain why a particular evidentiary criterion listed in the regulations is not readily applicable to the beneficiary’s occupation, as well as why the submitted evidence is “comparable” to that criterion. A general unsupported assertion that the listed criterion does not readily apply to the beneficiary’s occupation would not suffice, however, a statement alone can be sufficient if it is detailed, specific, and credible.
As with all O-1A petitions, officers may consider comparable evidence in support of petitions for beneficiaries working in STEM fields. Specifically, if a petitioner demonstrates that a particular criterion does not readily apply to the beneficiary’s occupation, the petitioner may submit evidence that is of comparable significance to that criterion to establish sustained acclaim and recognition.
For instance, if the publication of scholarly articles is not readily applicable to a beneficiary whose occupation is in an industry rather than academia, a petitioner might demonstrate that the beneficiary’s presentation of work at a major trade show is of comparable significance to that criterion. As another example, if the petitioner demonstrates that receipt of a high salary is not readily applicable to the beneficiary’s position as an entrepreneur, the petitioner might present evidence that the beneficiary’s highly valued equity holdings in the startup are of comparable significance to the high salary criterion.
An extraordinary applicant must still satisfy at least three criterion when using Comparable Evidence.
Achieving a Totality
Just submitting a qualifying number of the above mentioned evidence on its own, doesn’t necessarily guarantee that an individual will be classified as Extraordinary, in the eyes of USCIS. An officer must evaluate the totality of all the evidence in the record to determine whether the beneficiary has extraordinary ability with sustained national or international acclaim. Indeed, officers may consider any potentially relevant evidence, even if such evidence does not fit one of the above regulatory criteria or was not presented as comparable evidence, when taken as a whole.
For instance, a petitioner would likely satisfy a criterion under a totality of the circumstances approach if the record demonstrates that the beneficiary has published articles in particularly highly-ranked journals relative to other journals in the field, or a high level of recognition of the journals in question, as demonstrated by evidence in the record, or if there may be particular prestige or acclaim associated with publication in such journals, especially if the beneficiary is the most significant contributor to the publication, a senior author, or the sole author of the article(s).
Similarly, if a petitioner provides evidence demonstrating that the total rate of citations to the beneficiary’s body of published work is high relative to others in the field, or the beneficiary has a high h-index for the field, they would likely satisfy a criterion. Depending on the field and the comparative data the petitioner provides, such evidence may indicate a beneficiary’s high overall standing for the purpose of demonstrating that the beneficiary is among the small percentage at the top of the field.
Another example is if the beneficiary’s employment or research experience is with leading institutions in the field (such as U.S. universities that have been recognized as having high or very high research activity by the Carnegie Classification of Institutions of Higher Education, foreign universities with comparably high research activity, or a university that is highly regarded according to a widely recognized metric such as the QS World University Rankings, such employment or experience can be a positive factor toward demonstrating that the beneficiary is among the small percentage at the top of the field.
In all cases, the petitioner has the burden of providing sufficient context regarding the above evidence and considerations to demonstrate that the evidence meets the relevant criteria and to establish the beneficiary’s extraordinary ability in the totality of the circumstances.
By: James Gipson
James is a Staff Attorney at Reddy & Neumann. He works on all aspects of employment-based immigration, including non-immigrant and immigrant visa matters. Before joining the firm, James worked as an accomplished immigration litigator for a high-volume boutique immigration law firm in Miami handling a wide spectrum of immigration cases. James has successfully litigated and won numerous complex cases in the Immigration Courts and the Board of Immigration Appeals, and has written extensively before the Federal Circuit Courts of Appeals throughout the United States.
James also worked as a Federal Asylum Officer with USCIS, where he adjudicated voluminous complex cases and gained insight into the agency’s systems and processes.