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O-1B Classification

USCIS Updates O-1B Visa Guidance: Key Changes and Implications

The U.S. Citizenship and Immigration Services (USCIS) has issued new guidance that significantly impacts the O-1B visa classification for individuals with extraordinary ability in the arts and those with extraordinary achievement in the motion picture or television (MPTV) industry. This updated policy provides detailed standards for adjudicating O-1B petitions and clarifies the use of comparable evidence to meet the visa’s stringent criteria.

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Expanded Scope of O-1B MPTV Category

One of the most notable changes is the expansion of the O-1B MPTV category. USCIS now includes “streaming movies, web series, commercials, and other programs with formats that correspond to more traditional motion picture and television productions” under this classification. Additionally, the O-1B MPTV category applies when the beneficiary will perform services for motion picture or television productions in the United States, even if they are also engaged in artistic services outside of the MPTV industry.

Implications for Employers and Agents

Due to these changes, employers and agents sponsoring artists must meticulously assess the artist’s portfolio and each proposed engagement in the U.S. Determining whether an artist falls under the O-1B MPTV category is crucial because it carries more stringent consultation requirements compared to the O-1B Arts category. A careful evaluation ensures compliance with USCIS regulations and increases the likelihood of a successful petition.

Redefinition of “Field” and “Area of Extraordinary Ability”

The guidance addresses the previously undefined terms “field” and “area of extraordinary ability.” USCIS has broadened its interpretation to encompass “multiple related occupations” that involve “shared skillsets, knowledge, or expertise.” This development is beneficial for individuals whose work spans multiple related disciplines, allowing them to demonstrate extraordinary ability across interconnected occupations.

Totality of the Evidence Standard

USCIS has clarified its approach to determining whether a beneficiary satisfies the “extraordinary ability” or “extraordinary achievement” criteria. The agency states that “the fact that the petitioner has produced evidence satisfying at least three evidentiary criteria does not necessarily establish that the beneficiary is eligible for the O-1 classification.” Instead, USCIS will assess eligibility based on the “totality of the evidence.”

Alignment with Kazarian Two-Step Analysis

This approach resembles the two-step analysis used for the EB-1A immigrant visa classification, as established in the Ninth Circuit’s decision in Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Until now, it was unclear whether USCIS applied this standard to O-1 petitions. Applicants must not only meet the minimum number of criteria but also convincingly demonstrate their extraordinary ability or achievement through comprehensive evidence.

Increased Evidentiary Requirements

The updated guidance may raise the evidentiary burden on individuals seeking O-1 classification. Petitioners must provide substantial evidence and persuasively argue that this evidence demonstrates the beneficiary’s extraordinary qualifications. However, the guidance also expands the use of comparable evidence. Petitioners can submit alternative forms of evidence if they explain why a standard criterion is not readily applicable to the beneficiary’s occupation and how the submitted evidence is comparable.

Specific Examples and Emphasis on STEM Fields

The guidance includes specific examples and references that petitioners may use to demonstrate eligibility:

  • Researchers: Can reference impact factors and h-indexes to showcase the significance of their work.
  • Sales and Marketing Professionals: Presentations at trade shows may be considered comparable to “scholarly publications.”

Moreover, there is a notable emphasis on how the guidance pertains to beneficiaries in STEM-related fields, indicating USCIS’s recognition of the evolving nature of extraordinary ability across various industries.

Conclusion

The new USCIS guidance will significantly affect how O-1 petitions are prepared and adjudicated. While it expands the scope of candidates who may qualify under each classification, it also increases the evidentiary requirements for obtaining an O-1 visa. Applicants and sponsors must carefully navigate these changes by thoroughly documenting the beneficiary’s extraordinary abilities and understanding the nuances of the updated criteria.

Implications for Applicants

  • Greater Scrutiny: Be prepared for USCIS to evaluate the overall strength of your evidence, not just the quantity.
  • Use of Comparable Evidence: Leverage the expanded allowance for comparable evidence to strengthen your petition.
  • Professional Assistance: Consider consulting with an immigration attorney to navigate the complexities of the new guidance effectively.

Keywords: USCIS updates, O-1B visa, extraordinary ability, motion picture or television industry, O-1B MPTV category, comparable evidence, totality of the evidence, Kazarian analysis, immigration attorney, STEM fields, O Visa