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15 March 2023
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On March 3, 2023, the U.S. Citizenship and Immigration Services (USCIS) issued new policy guidance, Evaluating Eligibility for O-1B Visa Category, which describes new updates made to the USCIS Policy Manual.
United States Immigration
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On March 3, 2023, the U.S. Citizenship and Immigration Services(USCIS) issued new policy guidance, Evaluating Eligibility for O-1B VisaCategory, which describes new updates made to the USCISPolicy Manual. The new USCIS guidance aims to clarify theadjudication of O-1B visas for nonimmigrant workers ofextraordinary ability in the arts and nonimmigrant workers ofextraordinary achievement in the motion picture or televisionindustry. The new guidance is effective immediately and aims toimprove predictable and transparent application of O-1B evidentiaryrequirements, as well as improve consistency and efficiency inUSCIS decision-making. These updates were based on stakeholdercomments in response to a request for public input made by USCIS on May19, 2021.
O-1 Visa and Categorization Structure
Under the Immigration and Nationality Act, O-1 visa status isavailable to individuals of extraordinary ability in the sciences,business, education, arts, athletics, and motion picture ortelevision industry. Eligibility for this visa classification mustbe proven through evidence of specific criteria, indicating thatthe individual (or beneficiary) is one of a small percentage ofpeople who have risen to the top of a specific field of endeavor.The criteria are split among two categories depending on thespecific field or industry at issue. The O-1A visa categorycorresponds to the sciences, education, business, and athletics,while the O-1B visa category corresponds to the arts and the motionpicture or television industry. Both visa categories requireextensive documentation indicating that the beneficiary'sachievements have been recognized in their field through extensivedocumentation. The O-1A and O-1B visa categories tend to be popularcategories used by executives, scientists, physicians, artists,actors, musicians, fashion designers, film producers, directors,and other creative and television- or film-orientedoccupations.
While USCIS has long provided a list of defined required O-1Aand O-1B criteria for employers and employees to review anddetermine how best to demonstrate the beneficiary'squalifications, the criteria listed in the O-1B category tend to bemore subjective and less transparent, relative to those enumeratedfor the O-1A category. For example, some of the criteria forapplying for an O-1B visa in the arts and motion picture ortelevision industry include "a record of major commercial orcritically acclaimed successes," "significant recognitionfor achievements from organizations, critics, government agencies,and other recognized experts in the field in which the beneficiaryis engaged," and "evidence that beneficiary hasperformed, and will perform, services as a lead or starringparticipant in productions or events that have a distinguishedreputation." The USCIS Policy Manual contained minimaladditional guidance on these definitions or how to successfullymeet these abstract criteria.
New O-1B Appendix Added to Policy Manual
In an effort to help alleviate inconsistencies in adjudicationof petitions involving these criteria, USCIS has also introduced anew appendix, Satisfying the O-1B EvidentiaryRequirements, into the Policy Manual, which providesconcrete examples of evidence that "may, in somecircumstances, satisfy the O-1B evidentiary requirements, as wellas considerations that are relevant to evaluating theevidence." The appendix provides new detail on how employersand employees can ensure that they meet the provided O-1B criteria,for example, by instructing officers to consider factors such as"favorable critical reception, high attendance levels,commercial success, or another indicator" when evaluatingwhether the beneficiary has performed, and will perform, "as alead or starring participant in productions or events which have adistinguished reputation." The more specific evidencestandards should have the effect of reducing barriers for employersassociated with applying for the O-1B visa, as well as improvingtimeliness of approvals, ensuring employees can be onboarded morequickly and have better transparency about adjudication of theirvisas without lengthy requests for evidence.
Conclusion
Employers should continue to be aware of changing and morenuanced guidance for the O-1B visa category, particularly as it mayaffect employees in creative and entertainment industries who areeligible for this visa classification as "individuals ofextraordinary ability or achievement." Please reach out tocounsel should you have any additional questions on the possibleimpact of the new guidance, or with questions on potentialeligibility of employees for the O-1B visa classification.
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