Alternatives to the H-1B: O-1B Visa

For those of you considering viable options to the H-1B cap (because you don’t want to put all your precious eggs in the same broken basket), I will be doing a deep-dive into the O-1B criteria over the next couple of weeks.

When determining whether someone is qualified for O-1B classification, I cannot emphasize enough how essential it is to read the regulations and the requirements in their totality.

What does this mean? Literally read each and every single word – do not summarize or abbreviate the criterion because this is where you get into trouble.

O-1B Deep Dive - Criterion 2

The criterion at 8 CFR §214.2(o)(3)(iv)(B)(2) requires evidence that the foreign national “has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications.”

Problem

What’s so difficult about this criterion? Why do so many people get it wrong? To satisfy this criterion, you must make a three-part showing:

1. There is published materials WRITTEN BY the artist and their achievements OR

2. There is published materials WRITTEN ABOUT the artist and recognizes their achievements AND

3. That material is published in major newspapers, trade journals, magazines or other publications.

First, let’s cover what USCIS DOES NOT accept as satisfying this criterion. With very few exceptions, social media posts such as those appearing on LinkedIn, X, Facebook, Threads, and Instagram do not count as major media. Photos in tabloids or links to videos appearing on online do not count

However, if the artist was interviewed for a major broadcast network or related media outlet (which can include major podcasts) and transcripts are provided, such evidence is usually satisfactory.

Second, in addition to providing a printed copy of the article (which must be in English or accompanied by a certified English translation) that shows the name and date of the media, you must include media kit(s) or circulation/readership data to establish that the media qualifies as major media.

Pro Tips

First, read the Regulations and USCIS Policy Manual, in particular, “Appendix: Satisfying the O-1B Evidentiary Requirements” carefully and ensure that you are providing documentary evidence that satisfies the entirety of the criterion, not just a summary of what you think it means (or worse, only what you have evidence to show).

Second, include relevant evidence to this specific criterion. What does that mean? The evidence may include critical review(s) or other published material(s) in a major newspaper(s), trade journal(s), magazine(s), or other publication(s) (which may include online publications or a transcript of radio or video coverage) by or about the artist. The documentation must also include the media kit or readership/circulation data for each source.

Keep in mind that you must curate and thoroughly review all evidence is presented to USCIS about the artist. Care should be taken not to include documentation may be offensive (such as nudity or profanity) or early media articles that referred to the artist years ago as “up and coming”, “a rising star”, “future star” or “one to watch in the future” as USCIS will interpret these documents as showing that the artist is not NOW extraordinary but may become extraordinary in the future. If such documentation is included, USCIS will most likely deny the O-1B petition and tell you to refile in the future, once the artist is already a star.

Third, work with a qualified business immigration attorney who is experienced in representing, preparing and filing O-1B petitions for artists. It is essential to understand the changing definitions, regulatory interpretations and adjudicative priorities of USCIS in order to present the strongest possible petition.