USCIS draft policy memo would give O-1 visa applicants more flexibility to prove ‘extraordinary ability’

22 Jan 16

UNITED STATES

U.S. Citizenship and Immigration Services has released draft policy guidance that would allow O-1 visa beneficiaries more flexibility to submit evidence that they possess extraordinary ability in their field.

O-1 visas are granted to individuals who demonstrate extraordinary ability in science, business, education, athletics or arts and have been recognized nationally or internationally for their achievements. An individual may prove eligibility by meeting certain criteria listed in the regulations or by submitting “comparable evidence” (alternative but equal to the listed criteria) when the listed criteria do not apply to his or her occupation. Under current policy, USCIS officers consider comparable evidence only after the individual establishes that the majority of the listed criteria do not readily apply to the occupation.

The draft policy guidance would allow USCIS officers to consider comparable evidence for each listed criterion that is not readily applicable to the individual’s occupation.

“The petitioner does not have to show that all or a majority of the criteria do not readily apply before comparable evidence may be considered,” the draft policy memorandum states. “The number of criteria that do not apply is irrelevant to this analysis.”

Before comparable evidence will be considered for each criterion, a petitioner must explain why a listed criterion is not readily applicable to the individual’s occupation and why the proffered evidence is “comparable.” The draft guidance also clarifies that officers will consider both the quantity and quality of evidence by first assessing whether the minimum required criteria have been met, and then assessing “all the evidence in its totality.”

The draft guidance is subject to a 30-day public comment period.

BAL Analysis: While the draft policy guidance does not change the standards of eligibility for O-1 visas, it would allow O-1 petitioners to submit comparable evidence for one or more of the criteria without having to make a threshold showing that the majority of criteria do not apply to the individual’s job. USCIS will accept comments from the public on the proposed guidance until Feb. 22, and the guidance will not go into effect until USCIS releases a final memorandum.

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