Notable Client Success: O-1B Approval After Lengthy RFE
We want to celebrate the approval of an O-1B petition for a Singer and Songwriter (Beneficiary or Artist) after the receipt of a Request for Evidence (RFE) that was eight pages long, refused to acknowledge that the evidence submitted showed that the Artist met three of the required criteria, and made up standards that were utterly nonsensical and contradicted not only the regulations but also the USCIS Policy Manual.
As a reminder, in order to qualify for O-1B classification, the Beneficiary must be recognized as prominent in their field as demonstrated by the criteria set for at 8 CFR §214.2(o)(3)(iv):
(A) Evidence they have been nominated for, or have been the recipient of, significant national or international awards or prizes in the particular field such as an Academy Award, an Emmy, a Grammy, or a Director's Guild Award; or
(B) At least three of the following forms of documentation:
Evidence that they have performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications contracts, or endorsements;
Evidence that they have 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;
Evidence that they have 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;
Evidence that they have 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;
Evidence that they have received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged; or
Evidence that they have either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence; or
(C) If the criteria in paragraph (o)(3)(iv) of this section do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence in order to establish the beneficiary's eligibility.
In this case, we submitted substantial documentation evidencing that the Singer and Songwriter met three of the required criteria, including: (1) they 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; (2) they received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the music industry in the form of seven testimonial letters, five of which were authored by independent experts; and (3) they commanded a high salary or other substantial remuneration for services in relation to others in music industry.
In its RFE, USCIS challenged all of the evidence, claiming that the Artist did not qualify for O-1B classification. Upon close reading of the RFE, it was clear that the USCIS Adjudicating Officer was violating the law because they misinterpreted the regulatory criteria and created qualifying standards that conflicted with the regulations and USCIS’ own Policy Manual. Below, we provide excerpts from the RFE and discuss how we used the Policy Manual to overcome the RFE.
(1) The Singer and Songwriter achieved national or international recognition for achievements evidenced by critical reviews or other published materials about them in major newspapers, trade journals, magazines, or other publications, in satisfaction of 8 CFR §214.2(o)(3)(iv)(B)(2)
In its RFE, USCIS stated:
The evidence you submitted is insufficient.
The record contains several published materials and articles. However, the articles submitted do not recognize the beneficiary for achievements, and how the beneficiary received national or international recognition for those achievements.
In addition, you did not provide evidence to show your articles appeared in publications with the breadth of coverage and readership to confer national or international recognition for achievements as well as significance of these publications.
In our response, we stated that USCIS created adjudicative standards that did not exist anywhere in the statute or regulations and was wholly contradictory to the guidance established in USCIS’ Policy Manual. In its RFE, USCIS states that the articles must “recognize the beneficiary for achievements,” and must state “how the beneficiary received national or international recognition for those achievements.”
This request was beyond the scope of the regulations and was completely circular in logic. Under this ultra vires interpretation, a beneficiary can only establish that they meet this criterion if: (1) they are an artist of prominence; and (2) articles are written about them and their work for the purpose of recognizing their achievements as being extraordinary.
The very fact that Artist and their work are the subject of any publication in major media clearly satisfies this criterion as recognized by the guidance provided in the USCIS Policy Manual, which states:
The beneficiary and the beneficiary’s achievements need not be the only subject of the material in order to qualify as published material about the individual as described in this criterion. For example, published material that covers a broader production, exhibition, or topic, but includes a discussion of the beneficiary, or includes a discussion of the beneficiary’s work or achievement and mentions the beneficiary in connection to the work, may be considered material about the beneficiary… For example, favorable coverage or publication of the beneficiary’s work in major media, as demonstrated by high relative circulation, readership, or viewership figures, could establish national or international recognition of the beneficiary’s achievements.
We enclosed, again, a copy of the media materials about the Artist as well as the circulation data about each publication, confirming that the publications qualified as major media.
(2) The Singer and Songwriter has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field, in satisfaction of 8 CFR §214.2(o)(3)(iv)(B)(5)
In its RFE USCIS states:
The evidence you submitted is insufficient.
You submitted support letters which the authors praise the beneficiary's talent and his past works. However, they do not adequately explain how or why the beneficiary's past work constitutes achievements, how he received recognitions for his achievements, and how his recognitions are significant recognitions. Moreover, the record lacks additional documents to support the authors' claims.
Based on the language above, USCIS again created an adjudicative standard that did not exist in the statute or regulations and was completely contradictory to USCIS’ Policy Manual, which states:
To meet this criterion, 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.
A submitted testimonial should detail any achievements that are being recognized by the organization, agency, or individual. However, the testimonial need not describe other types of recognition that the beneficiary has received for a noted achievement. Instead, the testimonial itself may qualify as significant recognition under this criterion when the significance of the recognizing organization, agency, or individual is established.
In direct contradiction to the adjudicatory guidance established in the USCIS Policy Manual, USCIS has focused on the “achievement” itself as needing to be “significant” instead of the “recognition” being “significant.”
In its RFE, USCIS states that the testimonial letters fail to explain how the “beneficiary's past work constitutes achievements.” USCIS does not seem to understand that the Beneficiary’s past work is the very definition of “achievement.” Although the regulations and statute use the term “achievements” for the O-1B, that term is not itself defined. According to Merriam-Webster Dictionary, an “achievement” is “a result gained by effort” or “the quality and quantity of…work”. In this regard, the Artist satisfies this criterion if they have “one or more achievements” [i.e., work(s), works of art, portfolio of work, etc.] and that achievement or those achievements have been recognized by a “significant” organization, agency or individual.
We enclosed, again, a copy of the testimonial letters written by experts in the music industry and included each letter writer’s resume or LinkedIn profile and media materials confirming their stature as experts in the field.
(3) The Singer and Songwriter will command a high salary or other substantial remuneration for services in relation to others in the field, in satisfaction of 8 CFR §214.2(o)(3)(iv)(B)(6)
In its RFE USCIS states:
The evidence you submitted is insufficient.
While you claimed the beneficiary under this criterion, you did not provide sufficient evidence of contractual agreements to establish the beneficiary's salary. Please note that your statement alone does not constitute evidence without further documentation.
Moreover, your submitted agreement suggests that the beneficiary is an independent contractor and you will take a percentage of his earnings. However, please note that wage data from Bureau of Labor Statistics' Occupational Employment Statistics (OES) and the Foreign Labor Certification Data Center use data from the OES program which conducts a semiannual mail survey of employers designed to produce estimates of hourly or annual employment and wages for specific occupations. Data from self-employed independent contractors like the beneficiary is not collected and is not included in the estimates. http://www.bls.gov/oes/oes emp.htm. Therefore, this wage date and other similar sources may not a valid comparison and does not establish how the beneficiary's remuneration is high compared to his peers.
The language in the RFE created an evidentiary standard that did not, and has never, existed for artists to establish that they meet the high remuneration criterion. Based on the language above, USCIS again created an adjudicative standard that did not exist in the statute or regulations and is completely contradictory to USCIS’ Policy Manual, which states:
Petitioners often submit wage surveys to show a comparison. Wage survey data, including but not limited to government wage survey data such as the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics, may be helpful in evaluating the relative compensation for a given field. When evaluating whether an accurate comparison is being made between the beneficiary’s documented remuneration and the remuneration in the survey, the following considerations, among others, may be relevant:
Salary rate being measured. Officers consider whether the comparison data measures an hourly rate or an annual salary. Another consideration is how that information compares to the beneficiary’s pay. Many artists (including MPTV) are not paid an hourly rate but instead are paid a daily rate (which may not be equivalent to 8 hours) or are paid a certain amount for a project (involving an unknown number or hours). However, hourly wage data may still be probative if the petitioner submits documentation regarding the number of hours worked.
Based on USCIS’ Policy Manual, the wage data from OES is absolutely acceptable to determine whether an artist has or will receive high remuneration based on an annual salary or hourly salary.
In this case, we included, again, a copy of the Artist’s live performance contracts and OES wage survey data showing that the average Singer and Songwriter earned approximately $65.00/hour and BLS data showing that the top 10% of wage earners in the occupation earned $100.22/hour while our Singer and Songwriter would earn $600.00 for live performances.
In addition, we included, again, a copy of the Artist’s recording contract and OES wage survey data showing the Level 4 annual salary for a Singer and Songwriter was $130,603 while our Singer and Songwriter would be earning an average annual salary of $350,000 to $650,000 over the course of the contract.
Clearly, whether using an hourly rate or annual salary as the basis for comparison, our client would be receiving significantly higher remuneration that greatly exceeded the remuneration of other similarly situated artists in their field.
Conclusion
After re-submitting the exact same evidence with the explanation above, USCIS approved the O-1B petition for our Singer and Songwriter.
Whenever you receive an RFE from USCIS, it is essential to read the document carefully. In our experience, these RFEs show that the Adjudicating Officers often misinterpret and/or misapply the law, create standards that simply have never and do not exist anywhere in the regulations, create standards that conflict with regulatory requirements and the USCIS Policy Manual, cherry-pick or misquote language that is not relevant to establishing eligibility, or simply confuse one beneficiary’s case with another.
For O-1 petitions, it is essential to work with a qualified business immigration attorney who can provide guidance and legal representation throughout the lifecycle of the case, from the initial filing to responding to challenges from USCIS.