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 3
One of the criterion for the O-1B that, in my humble opinion, causes the most confusion is evidence that the foreign national “has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials.” 8 CFR §214.2(o)(3)(iv)(B)(3)
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:
The artist has performed (in the past) services in a lead, starring or critical role AND
The artist will perform (in the future) services in a lead, starring or critical role AND
The artist’s performance in a lead, starring or critical role was and will be for organizations and establishments that have a distinguished reputation.
First, many petitions include evidence of past performances OR future performances in a lead, starring, or critical role, AND NOT BOTH. To qualify the artist’s past performances AND future performances must be in a lead, starring or critical role.
Second, many petitions do not establish that the organizations and establishments have a distinguished reputation.
Third, many petitions use the terms “lead”, “starring”, and “critical” interchangeably, when these mean different things. For USCIS, a lead role means a principal role in the organization or establishment, while a starring role means a position of great prominence relative to others in the organization or establishment. Critical role means that the artist has contributed or will contribute in significant or integral ways to the organization or establishment’s goals or activities.
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 articles in newspapers, trade journals, publications, or testimonials that confirm the artist’s leading, starring or critical roles.
Note that these testimonial letters should come from the artist’s employers or other people with first-hand knowledge of the significance of the artist’s. In defining the artist’s role USCIS takes into account more than just the artist’s title, and also looks at the artist’s specific duties and contributions to the organization/establishment’s goals or activities.
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.