On May 15 2019 by Feige M. Grundman

Learning O-pportunities: Strategies for O-1 Success

By Feige M. Grundman and Alexander Magalli

Amid the many challenges faced by visa applicants over the past year, there is some good news regarding employment-based petitions: 2018 data shows that approximately 88% of decisions on O-1 nonimmigrant visa petitions were favorable. The not-so-good news for O-1 hopefuls is that once United States Citizenship and Immigration Services (USCIS) denies a case, the unfavorable decision tends to stand. Of the 28 AAO decisions published in 2018, there were no sustained or remanded appeals. The lesson to be learned from these figures is clear: getting it right the first time and avoiding a Request for Evidence or Notice of Intent to Deny is both achievable and critical to long-term success.

Despite unequivocally upholding denials from USCIS, AAO decisions on O-1 Extraordinary Ability petitions offer valuable insights that can inform and improve the planning and presentation of an O-1 petition. These published decisions not only identify the whys of an appeal denial, but they often provide discussion of the specific scrutiny, comparisons, and standards applied by USCIS adjudicators who make the initial determination on whether a case is approved, is issued a Request for Evidence, or is denied. Analysis of these decisions can thus be leveraged to create an outcomes-based roadmap that allows a broad spectrum of petitions to steer clear of the pitfalls and presumptions that produce unwanted results.

Some of our most notable conclusions and observations from the past year’s batch of AAO O-1 decisions are as follows.

Supporting Evidence Matters

Analysis of 2018 AAO decisions shows that one of the most common reasons for O-1 denial is a failure to show through evidence that a petitioner’s accomplishments and distinctions reach a level indicative of extraordinary ability and national acclaim. Multiple AAO decisions included language like:

“The Petitioner, however, did not present any supporting evidence, such as substantial media coverage, showing the national or international significance of the awards or prizes.”

or:

“… while on appeal, the Petitioner maintains that its organization has a distinguished reputation, it does not provide documentation supporting that claim.”

This consistent criticism confirms that it is not enough to merely tell USCIS that an accomplishment is significant, these claims must be supported by documentary or testimonial evidence. There are many ways to accomplish this strategically, but the main lesson to be learned is that failing to provide evidence to confirm the significance of an achievement is a sure route to a negative outcome.

This July 2018 decision shows starkly how a seemingly straightforward case will still face denial if USCIS is not persuaded by evidence that confirms the claims made within.

Get Specific!

One of the most intuitive criteria to meet when seeking an O-1 is employment in a critical or essential capacity for an organization with a distinguished reputation. Few companies employ individuals who are not essential to the aims of the establishment, and it stands to reason that an individual potentially qualified for O-1 Extraordinary Ability classification would provide critical value to their employer. AAO decisions from 2018 frequently include the following language, though, reflecting the frequency with which this is denied due to a lack of specifics: 

“The record includes a letter from the Petitioner stating that the Beneficiary performs her duties in an excellent manner and that she has helped her patients examine and improve their lives. In addition, the Petitioner submitted a letter from indicating that the Beneficiary worked there from 2003 until 2010, performed quality work, and demonstrated responsibility and commitment to the center. The aforementioned statements, however, are not sufficient to demonstrate that the Beneficiary has been employed in a critical or essential capacity for the aforementioned organizations.”

or:

“The record includes a letter from the Petitioner stating that the Beneficiary will serve as its stage manager of its productions ‘for the next three years.’ While this letter lists the responsibilities associated with the Beneficiary’s position, it does not identify specific upcoming productions or events in which he will participate.

The frequency with which such criticism is levelled makes a clear statement about what USCIS expects from a petitioner asking for this criterion.

  • For prior employment, it is necessary to show specifically why the role was vital to the employing establishment. This can be done by showing both the benefits the individual has provided to the employer, and by providing detailed context to elucidate the specific problems or obstacles that the individual was hired to overcome.
  • For upcoming events it is essential to be as specific as possible. It is further necessary to provide as much documentation as possible to show that upcoming leading roles are pending but in no way prospective.

The bigger picture here is that, in order to avoid scrutiny, it is essential to turn off presumptive knowledge when discussing an essential role and assume a beginner’s mind. It is not enough to merely say, for example, that the conductor is a critical member of a symphony orchestra – however obvious that may seem. The petition must articulate why this role is critical and essential through testimonial evidence provided specifically for the petition in question, or through existing literature discussing the essential nature of the role.

As an example, this January 2018 decision shows how a reliance on presumption and a failure to provide specifics will result in USCIS rejecting qualitative claims about the essential nature of a seemingly vital role.

It Matters How You Say It

Testimonial evidence is very often the framework that ties a petition together. Although published material about the beneficiary can help establish acclaim in the field, rarely is such material authored in a way that directly connects an individual’s accomplishment to regulatory requirements. Signed letters from experts in the field can thus play an essential role in framing the discussion to confirm that documentary evidence specifically satisfies the criteria it is alleged to evidence.

The AAO record shows that, no matter how prestigious the signatory of a letter, USCIS has consistently demonstrated an unwillingness to grant full weight of evidence to testimonials that lack details or do not focus on the regulatory criteria. In fact, nearly every AAO O-1 denial from 2018 includes language along the lines of:

“While this letter… it does not.”

or in a specific case:

“These letters discuss the Beneficiary’s talent as a psychotherapist, writing and presentations skills, job responsibilities, and expertise in her field… The record, however, does not show that the Beneficiary’s work has affected psychotherapy practices in the field or has otherwise risen to the level of an original scientific contribution of major significance in the field.”

These recent AAO decisions reveal that even testimonials provided by government officials or luminaries in the field are not sufficient for evidentiary purposes if the language in them does not specifically explain how the beneficiary meets the regulatory criteria. Although some statements in USCIS denials may seem intentionally obtuse, the burden of proof is on the petitioner. Ultimately, the published AAO decisions from 2018 show consistently that neither AAO judges nor USCIS adjudicators are obligated to draw common-sense conclusions that are not explicitly asserted and proven by the petitioner.

In this context, it is important to view testimonial evidence as a valuable resource, but to recognize that such evidence is only effective if targeted directly at the regulatory language USCIS adjudicators are trained to look for. Documentary evidence is the critical foundation of a petition; bespoke, effective testimonial evidence is the mortar that holds the bricks together to create an effective structure. 

Down the Road…

As part of a wholistic and adaptive case preparation approach, AAO decisions are a valuable resource for crafting an informed, outcomes–based strategy. Through analysis and comparison, these decisions present an invaluable opportunity to learn from the mistakes of past petitions and to identify and address potential criticisms of the case before USCIS issues a Request for Evidence, Notice of Intent to Deny, or denial.

Because O-1 petitions are frequently processed in a shorter time span than I-140-based extraordinary ability petitions, decisions in this visa category offer a particularly valuable look at the contemporary adjudication environment. Further, because the criteria for the O-1 visa closely match those of EB-1/Extraordinary Ability, EB-1/Outstanding Researcher, and P visas, these O-1 decisions offer additional guidance for a broad range of artists, scientists, and business professionals seeking appropriate immigration classifications.

 

Do you have what it takes to pursue an EB-1 or an O-1 petition? Schedule a consultation to discuss with the EB-1 team. 

 

This article is part of a series analyzing AAO decisions on various employment-based visa classifications in 2018. Alexander Magalli is a Technical Writer on the Klasko Immigration Law Partners EB-1/O-1/NIW Writing and Research Team. Feige Grundman is a Senior Associate at the firm with expertise in all areas of employment-based immigration law, and specializing in EB-1/O-1/NIW cases.

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

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