August 29, 2018
The year 2018 shows that USCIS is taking a tougher stance on O-1 visas. Cases at the Administrative Appeals Office demonstrate certain trends, along with Hill & Piibe’s experience on its own cases. The USCIS website lists O-1 visa criteria here, and the following are some of the more notable trends in USCIS interpretation of the criteria requirements.
USCIS is reading the visa criteria more literally
For example, one criterion requires “published material in professional or major trade publications or major media about the alien, relating to the alien’s work in the field . . . .” In the past, USCIS would accept media reports about the applicant’s work, such as reports on a horse/rider’s success for a Horse Trainer. But lately USCIS requires the media report literally to discuss the applicant and not just the work. Another example is the criterion, “authorship of scholarly articles in professional journals or other major media in the field. . . .” A Psychotherapist failed to meet this because the articles were published in general media, rather than in media for the field of psychotherapy, and USCIS considered the articles to be about general “wellness,” rather than a scholarly article about psychotherapy. And another case was denied where a Soccer Coach’s teaching manual was considered to be an “athletic” contribution, and failed to meet the criterion for original “scientific, scholarly, or business-related contributions.” When preparing and submitting an O-1 visa case, it is more important than ever to make sure the evidence squarely supports every word listed in the criteria, and to provide an explanation of how the evidence meets the criteria.
Salary/contracts are reviewed more stringently
USCIS is requiring more detail in employment agreements, and reviewing them more carefully. In the past, USCIS readily accepted data from the Bureau of Labor Statistics (BLS) to demonstrate “average” and “high” salaries in an occupation. Now, USCIS views BLS data as too generalized and wants field-specific comparisons. In the past it also accepted statements of other types of remuneration, such as commissions, housing, bonuses and more. But now it requires specific corroborating evidence to demonstrate both the value of this remuneration as well as to demonstrate if the specific type of non-salary remuneration is “high” in comparison. Finally, USCIS is combing through written employment agreements and it is vital to make sure they are thoroughly consistent with all details and explanations in the visa petition; discrepancies can arise when the visa petition provides more detail than in the employment agreement.
Some occupations do not measure achievement/distinction in the manner dictated by the criteria, and the statute allows for “comparable evidence” in those cases. But now USCIS is far more stringent on this standard. First, it requires the applicant to address every single criterion and more thoroughly explain why each does not apply to the occupation. Second, USCIS now requires corroboration and has even improperly rejected the explanations of demonstrated experts in the field. Third, USCIS has undertaken its own research efforts, using internet search engines and employing generalized terminology to wrongly conclude that certain criteria could apply to the occupation.
The road is more arduous for O-1 visa applicants under the current administration, and care must be taken to present a solid case that leaves no questions or grey areas, because USCIS will not resolve them in the favor of the applicant.
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