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 5
The criterion at 8 CFR §214.2(o)(3)(iv)(B)(5) requires evidence that the artist “has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged. Such testimonials must be in a form which clearly indicates the author's authority, expertise, and knowledge of the alien's achievements.”
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 received significant recognition for their achievements;
Such recognition must be from organizations, critics, governmental agencies or other recognized experts in the specific field of endeavor; and
The documentary evidence submitted must clearly establish the organization, critic, governmental agency or expert’s authority, expertise, and knowledge of the artist’s achievements.
What exactly does USCIS mean with regard to “significant recognition for achievements”? According to the USCIS Policy Manual, “the evidence must establish the beneficiary has received significant recognition for one or more achievements from an organization, critic, government agency, or other recognized expert in the field. The word significant in this criterion modifies recognition rather than achievements. Accordingly, although the beneficiary must have one or more achievements, the significance of the recognition is based on who is recognizing the achievements.”
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, many people think they can or should file an O-1B petition with 10+ testimonial letters and that this will somehow make up for the weakness in the documentary evidence submitted to satisfy other criteria. Nothing could be further from the truth–this is the equivalent of ordering a sandwich and receiving a roll smeared with copious amounts of mayonnaise or ketchup or any other condiment and nothing else. Yes, it’s still edible, but is it an “extraordinary” sandwich?
In my experience, filing an O-1B petition with so many testimonial letters is a red flag to the adjudicating officer. I usually recommend 5-7 testimonials, with at least half being issued by independent experts in the field.
Third, care must be taken to identify the experts. How many years of experience do they have in the field? Have they all worked with, taught, or supervised the artist? Or worse, are they related to the artist (nepotism doesn’t work for O-1B petitions). What are their qualifications showing that they are an expert in the field? How do they know the artist? What can they confirm about the artist’s achievements? These are all essential questions to answer before securing a testimonial letter.
Fourth, 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.