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U.S. Citizenship and Immigration Services (USCIS) recently updated its policy guidance related to O-1B nonimmigrants of extraordinary ability in the arts and motion picture or television industry. The updated guidance, effective immediately, is intended to clarify how USCIS evaluates evidence submitted by employers seeking to sponsor foreign national employees under the O-1B visa category.

O-1 Nonimmigrants of Extraordinary Ability

The O-1B nonimmigrant category is available to individuals with extraordinary ability in the arts or extraordinary achievement in the motion picture or television industries. Under the Immigration and Nationality Act, in order to qualify for an O-1 visa, “a beneficiary must have a demonstrated record of extraordinary achievement” and the “beneficiary’s achievements must have been recognized in the field through extensive documentation.” Supporting evidence under the O-1B category must include a major qualifying award or evidence sufficient to satisfy at least three of six evidentiary criteria.

Updated Policy Guidance

The updated policy guidance includes a new appendix that provides examples of the types of supporting documentation that may be submitted under each of the six O-1B evidentiary criteria and the considerations relevant to the USCIS adjudicating officer’s evaluation of each.

The guidance also clarifies that the comparable evidence provision does not require that the petitioner establish that several, or a majority, of the O-1B criteria are “entirely inapplicable to the beneficiary’s occupation.” The petitioner may submit “comparable evidence” that is not specifically described in the O-1B criteria “if the petitioner shows that a criterion is not easily applicable to the beneficiary’s job or profession.” A “detailed, specific, and credible” statement alone may be sufficient to show that a criterion is easily applicable.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to these and other policy changes and will post updates on the Immigration blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.

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