New O-1 Visa Restrictions Make Approval Uncertain

By: Danielle E. Huntley, Esq.  

The O-1 visa is a useful tool to bring the world’s best and brightest to the United States. The O-1 visa enables a U.S. company or institution to petition to bring an alien of extraordinary ability to the U.S. An alien of extraordinary ability can also self-sponsor for the O-1. It is initially granted for a period of three years, and it is particularly useful because it can be renewed indefinitely and it can facilitate obtaining a green card for the alien. It enables many foreign doctors and researchers to come to the U.S.


Since 1991, according to the Code of Federal Regulations (CFR), the evidence submitted to establish extraordinary ability must show that the “alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.”  8 C.F.R. §204.5(h)(3) To establish this, evidence “of a one-time achievement (that is, a major, international recognized award), or at least three of the following” criteria, must be shown:


“(i) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;


(ii) Documentation of the alien'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;


(iii) Published material about the alien in professional or major trade publications or other major media, relating to the alien's work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;


(iv) Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought;


(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;


(vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;


(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or showcases;


(viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;


(ix) Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or


(x) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.”


8 C.F.R. §204.5(h)(3)


The text quoted above plainly states that there are two ways to establish extraordinary ability: (1) a major, international recognized award (the Nobel Prize is an often used example), or (2) establish at least three of the above criteria. However, reading only the CFR would be misleading because USCIS recently added a new, second level of criteria – a nebulous final merits determination.


This new level of review was not added through the congressionally mandated procedures for adding new regulations to the CFR, but rather through a December 22, 2010 Policy Memorandum. The memo updates the Adjudicator’s Field Manual in relevant part to say:


“Meeting the minimum requirement of providing required initial evidence does not, in itself, establish that the alien in fact meets the requirements for classification as an alien of extraordinary ability…In Part Two of the analysis in each case, USCIS officers should evaluate the evidence together when considering the petition in its entirety to make a final merits determination of whether or not the petitioner, by a preponderance of the evidence, has demonstrated that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise, indicating that the alien is one of that small percentage who has risen to the very top of the field of endeavor.”


Oddly enough, USCIS imposed these new restrictions under the cover of a Ninth Circuit Case, Kazarian v. USCIS, which faulted USCIS with “unilaterally impos[ing] novel substantive or evidentiary requirements beyond those set forth at 8 C.F.R. §204.5.” Kazarian, 596 F.3d 1115, 1121 (9th Cir. 2010).


Even putting aside the flagrant disregard of the regulation making process, mandated by the Administrative Procedure Act, this second level of review is facially problematic. It gives the USCIS adjudicating officer, who most likely has no experience or qualifications in the alien’s field of ability, the unfettered power to ignore the regulatory criteria and deny petitions using the rubric the totality of the circumstances. The O-1 visa is left to the mercy of the adjudicating officer’s particular opinions and prejudices. This new level of review will undercut predictability and will make the application process more time consuming, resource intensive and expensive for the alien and the U.S. companies or institutions who are petitioning for them.