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 4

The criterion at 8 CFR §214.2(o)(3)(iv)(B)(4) requires evidence that the artist “has a record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, 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. The artist has a record of major commercially acclaimed successes, OR

2. The artist has a record of critically acclaimed successes, AND

3. These successes are documented by ratings, box office receipts, sales or revenues generated by the artist, standing or ranking in the field, or other occupational achievements as reported in major media.

First, let’s cover what USCIS does not accept as satisfying this criterion. With very few exceptions, views, likes or comments on social media (LinkedIn, X, Facebook, Threads, and Instagram) do not count.

Second, what does USCIS accept? When looking to satisfy the “record of major critically acclaimed success” component, the evidence is more limited. There must be “public-facing praise or positive reviews in the relevant field, such as from professional art, television or film critics” and such reviews must appear in major media. When looking to satisfy the “record of major commercial successes”, the evidence can be more diverse.

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 other major media that are about the artist and their work or their accomplishments that have received praise or noteworthy recognition, or show commercial success such as sold out performances or rankings as #1 or in the top 10. 

For example, if the artist is a musician, the evidence may include record sales, music recording certifications (platinum, gold, diamond), ranking/rating on popular music charts, sold out performances/tours, and royalty payments.

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.