DISCLAIMER: These are not official minutes, nor have they been edited by all the participants. This is my own summary of important issues raised in the most recent chapter of the Service’s attempts to engage with users of the O-1 visa program to find out what we think is wrong. Thanks are due to everyone who participated in the stakeholder engagement call on April 28, but no one gets name attribution here – to avoid giving either credit or blame.
After the usual introduction of reading aloud from the regulations, USCIS representatives stated that they want to acknowledge the realities of the industries that use the O-1 visa category, within the framework of current regulations. They expressed a desire for industry-specific feedback from stakeholders on what is meant by “sustained national or international acclaim,” what can be deemed “comparable evidence”, and what it means to be at the top of your particular industry. To avoid restating the obvious time and again, most questions addressed to the Service by stakeholders went unanswered. Service representatives attempted to organize the call by addressing first the standard for aliens of extraordinary ability in business, education, science or athletics, then the standard for aliens of extraordinary achievement in film and television, and then extraordinary ability in the arts, but in practice the call largely did not follow that model.
First, a caller expressed concern with the overall purpose of USCIS’ interest in exploring O-1 adjudications and “clarifying” the regulations over the past three years. He noted that while the stated goals of consistency and clarification are indeed achievable, the only visible result to practitioners so far is much higher rates of RFEs, NOIDs and denials, and that curtailing availability of the O- 1 visa does not appear to be in the country’s best interests, either culturally or from a business perspective.
One caller noted that adjudicators seem to be applying a US-based definition of what constitutes acclaim or awards at the “national” level, showing reluctance to recognize that national awards, press or other evidence of acclaim from the alien’s own country of nationality meet the regulatory standards [at 8 CFR 214.2(o)(3)(iii)(B)(1)&(B)(3)].
Another caller asked if there is a distinction between the evidentiary weight accorded to testimonial letters as opposed to other types of evidence, because adjudicators seem to be applying one, giving less weight to testimonials, although such a distinction is not supported by the statute or regulations.
Several callers, representing fields from various sports to ballroom dancing, noted that USCIS redefines and narrows the “field of endeavor” when it comes to review of any O-1 positions that involve teaching, coaching or directing an educational program in a sport or dance discipline, rather than performance or competing in these physical fields of endeavor where there is a natural career progression from performance and competition in youth to teaching, coaching or supervising a program based on demonstrated athletic ability, experience, and past successes in competition. One caller noted that the Service’s narrow view in this context is unsupported by the regulations and case law, which permit a more liberal application of these skill sets.
One caller asked the Service to specify the difference between the O-1A standard in science, business, education or athletics and the EB-1(A) standard, as they appear to be essentially identical, but what stakeholders encounter in practice is that a much higher standard is applied in the I-140 setting.
With respect to the alternative regulatory criterion of “comparable evidence” [8 CFR 214.2 (o)(3)(iii)(C)], many stakeholders weighed in. One noted that using this criterion with any creativity falls flat with adjudicators, because they are not trained to be flexible in applying the regulation. Several callers noted that adjudicators consistently express an antiquated view of the types of documents that can demonstrate extraordinary ability, and they are unduly skeptical of all online media, which are the sole stock in trade of many professions (e.g., graphic designers, animators, videographers, etc.) and which are now the most common means of publicity for many professions. One caller noted that adjudicators are ignoring or discounting online sources to the point of demanding printed award certificates even after supplied with a webpage from the international awarding body listing award recipients, or demanding copies of print articles when presented with numerous reviews in blogs and other online publications. The need for the Service to modernize its approach to online media sources was echoed by several callers. Another caller asked the Service to clarify how to address situations where some of the existing criteria do apply to the alien’s field of endeavor but the remaining criteria are irrelevant to the field of endeavor, so the use of “comparable evidence” is needed, but currently in those situations adjudicators are simply ignoring any items presented as “comparable evidence” and claiming that the beneficiary does not meet enough of the criteria.
Echoing the problem with sports teaching and coaching positions, one practitioner noted that this is symptomatic of a broader issue, where USCIS adjudicators routinely reject or try to limit crossover or interdisciplinary job opportunities that arise as a logical application of the beneficiary’s expertise and renown– an RFE claims that a distinguished architect offered a position to teach architecture suddenly has to qualify as an extraordinary teacher, or a musician invited to perform on a music-oriented TV program is suddenly an “actor”, etc. –the Service needs to train its adjudicators to be more responsive to how such cross-industry opportunities and needs arise in the real world.
Several callers noted that much evidence of high salary, compensation or box office receipts in comparison to others in the field is commonly ignored by adjudicators, or measured by US economic standards which do not apply in the alien’s home country. One caller noted that there is a pattern of RFEs asking by name for surveys from the Economic Research Institute, and that such RFEs are cost-prohibitive and often off-point, since the ERI surveys cost thousands of dollars and only cover jobs with for-profit entities in the United States, the UK, Italy and France. Therefore, the ERI survey may be wholly irrelevant to both the field of endeavor and to the country or region where the alien’s career has been established. Another caller noted that the frequent dismissal of US Dept. of Labor OES surveys presented as evidence of high salary in the O-1 context is inappropriate, particularly given the Service’s reliance on those same surveys in the H-1B context. A caller asked for more deference to other reliable sources of comparative salary evidence, such as letters from hiring officials or headhunters with established hiring and compensation expertise specific to the field of endeavor. One caller complained of an off-point RFE that asked to compare the salary offered to the alien to the salaries of other (unrelated) positions within the petitioner’s company.
A caller challenged the Service’s practice of sending a Request for Evidence, and then denying the petition because the evidence supplied in response post-dates issuance of the RFE. He pointed out that this rationale for denials is both ultra vires and illogical: the fact that a new document explaining the beneficiary’s renown is created after the date an RFE is issued does not mean the beneficiary’s renown arose after the time of filing.
One caller asked why the regulation saying that a petitioner does not need to include all the evidence when seeking an O-1 extension for the same beneficiary in the same position is routinely ignored.
One caller noted that for O-1B petitions in the arts, and for aliens of extraordinary achievement in film and television, at least three of the regulatory criteria may be met by evidence in the form of testimonial letters, but adjudicators are issuing Requests for Evidence that say you cannot make a case based on letters alone: this ignores the reality of certain behind-the-scenes professions, such as sound engineers, set designers, etc. where the top people are renowned within the industry, and routinely selected to work with the most prominent directors on important productions, but the nature of their work precludes recognition in general media available to the public.
A caller asked the Service to remind adjudicators that their job does not include formation of new policy… several others asked if adjudicators could be reminded that making up new legal standards, and/or importing legal standards from other categories is not within the purview of adjudicators’ responsibility or authority. In that context, one caller noted that adjudicators seem especially prone to dismiss evidence that an event, production or venue is distinguished… on the off-point grounds that it is not evidence of a major national or international award to the beneficiary.
One caller noted that although we are seeing an increasing volume of RFEs based on bright-line rules and checklists, we have less and less confidence that adjudicators will apply the regulatory criteria as written, and that they have permission to apply common sense and real-world knowledge to the adjudications process.
Another caller noted a marked difference in how adjudicators treat past vs. prospective events, and seem particularly unwilling to entertain the notion of any renown attaching to upcoming commitments from distinguished productions or famous directors.
A caller asked when we could expect to see the fruits of this feedback in terms of changes to patterns in adjudication, but USCIS representatives could not provide a time frame. They noted that copies of truly off-point or inappropriate RFEs and NOIDs should be provided to email@example.com (and a caller noted they should also be provided to firstname.lastname@example.org), but that timely responses must still be filed with the relevant Service Center. A caller responded that some RFEs are so creative, off-point and burdensome that responding to them takes considerably more time and effort than preparation of an initial petition filing, and saying that we have to respond on time no matter how ridiculous the RFE just shifts the entire burden of fixing the broken adjudications process back onto the industry and the petitioner.
Another caller noted that 16 examples of absurd RFEs from the California Service Center submitted to USCIS a year ago by the Performing Arts Working Group has produced no visible result to date except that now similarly absurd RFEs are now also coming from the Vermont Service Center.
CODA: In developments since the stakeholder call of April 28, the template for the EB-1 RFE was released on May 4, and it reflects a problem mirrored in a recent complaint on the O & P visa forum about an O-1 RFE on a similar issue. In both, USCIS asserts that awards, publications, press coverage, etc. – in short, any accomplishments at all – earned while the beneficiary was a student (or exchange visitor), do not count towards eligibility for an O1 visa. My response to that specific post was as follows:
Be aware that this is part of a broader trend, which is a tendency on the part of USCIS to claim that ANYTHING achieved (awards won, publication, etc.) while a person is an F-1 student or J-1 exchange visitor somehow does not count as a professional achievement: fight back hard, because they are wrong. To take an example from the hard sciences, there are many brilliant young people who get papers published in distinguished peer-refereed journals before completing their doctoral degrees, and a few who do so even before finishing a Master's: that does not make any such article a "student publication."
USCIS, both at the policy level and at the individual adjudicator level, has real trouble understanding the distinction between:
A) achievements or accolades that are by their own terms limited to students within an institution, which do not meet that regulatory criterion;
B) awards from a national or international body for distinguished work in the academic field that merits the funding of further work in that field (such as a Fulbright, a Mellon or Ford Foundation grant, or a MacArthur "genius" grant - although awarded to pursue graduate work, these undeniably indicate outstanding ability in an academic field at a national or international level, and show recognition from an impartial body beyond the university for contributions that may have lasting significance to the academic field); and
C) professional awards, publications or achievements having no limitation to student candidates that the person got while he or she still just happened to be a student.
There is no basis in law or regulation for the claim that any national or international awards, any publications by or about the alien, and any achievements or recognition earned while the person was a student, are somehow ineligible for consideration toward O-1 classification on the sole ground that they were earned while in student status. It's ultra vires; they are making it up. In this context, be mindful not to damage your own case by claiming that student awards are professional ones.
USCIS Director Ali Mayorkas may not know much about what his field offices are doing, but he knows the law and regulations, and he’s a very smart cookie. I really do believe he wants to be liked by the business communities his Service Centers are so busy disemboweling.
Some immigration attorneys present in person at April 13 Stakeholder Engagement on O & P visas came to the conclusion that what we now have as a result of that meeting is an opportunity to gather industry examples from a wide variety of disparate real-world business settings where the O-1 visa has been relied upon, in order to help the Service craft more-expansive groups of definitions of what constitutes an O-1 “employer” under agent scenarios, for purposes of compliance with the law. The statute does specify “upon petition of the importing employer” at INA 214(c)(1), as the Director quickly reminded me while I was describing the real-world scenarios of creative artists, who often do not have anything that resembles a traditional employer-employee relationship.
I noted that the nature of original creative endeavors with a defined work opportunity in the US, such as a fine artist under contract with a US gallery, or a musical artist under contract to make recordings for a production company or record label, typically leaves the individual artist firmly in control of both the content and timeline of their own work product. These arrangements leave the business end of things, such as selection, editing, presentation, pricing, promotion, & sales of the artistic work product, and identification & growth of the US market for the work product, to the agent. I was caught off guard and pressured into identifying the agent as the “employer” in these scenarios, but in fact the identity of the “employer” is truly bifurcated. Substantive control over the work rests with the artist, and administrative control over the how, when & where of selling the artist’s product (i.e., all business aspects of promoting & selling the creative product) rest with the agent.
However, the Service has been flexible on this issue in the case of models, where the US “employers” are the end-users with whom the petitioning agency is unlikely to have any contracts in advance of the dates of service. For the modeling & fashion industry, the Service has been willing to rely on the nature of the models’ ongoing relationships with their US agents. In light of this, the Director suggested that for creative artists, perhaps the notion of exclusivity of the contract with the US agent may be taken into account and may have a similar impact.
Of course, we all would have had more time to reflect on & offer a multitude of carefully considered definitions of who the “employer” is in different industries under the agent categories detailed in the Executive Summary of the March 24 O-1 Agent Stakeholder Meeting had USCIS released it with more advance notice. However, since it was published around 10am on the morning of the recent O & P Stakeholder Engagement, practitioners and other stakeholder organizations had limited opportunity to review the Executive Summary before attending to the April 13 meeting.
Basically, wherever the petition is NOT filed directly by a US employer, we have to find a way to squeeze reality into three types of “employer” bins under the regulatory types of agent relationships, as listed under the headers in the Executive Summary – which reflect the regulatory subparagraphs at 214.2(o)(2)(E)(1 – 3). These are (1) Agent Performing the Function of an Employer, (2) Person or Company in Business as an Agent, or (3) Foreign Employer Filing Through a US Agent.
The problem inherent in even starting from the type of reasoning embodied in the January 8, 2010 USCIS memo defining H1B employers, and branching out from there in order to structure sensible O-1 definitions of “employment” for industries that rely on a wide variety of creative piece-work, flat-fee, hourly, or commission-like percentage payment schemes for freelance and independent contractor work, is that there aren’t just three distinct frameworks in the real world of arts and entertainment businesses. There are infinite permutations of how the services or work-products of individuals are solicited, engaged and paid for. Attempting to fit all of them into boxes labeled “employer” is a terrifying prospect for businesses that face a host of business, liability, tax and other reasons to avoid that very label.
If you represent an organization that files its own O-1 visa petitions, or if you are an immigration attorney with clients in any field who are not traditional employers, and you make use of one or more types of O-1 Agent filings, please provide examples. Describe how your clients’ industries work, and how they would like to see “employer” defined!
Based on public outcry from the arts community and the immigration bar, US Citizenship & Immigration Services has sought to engage stakeholders in a dialogue in order to understand why their policy memorandum of November 2009 regarding agents serving as O-1 petitioners was not well received, and why their ongoing, ever-narrower “clarifications” reinterpreting the regulations are so unpopular with the industries that rely on the O-1 visa. In short, that memo has substantively changed the interpretation of existing law and regulations, and it added new requirements not supported by the regulation, even though the regulations themselves have not been amended nor revised since adoption of the O-1 Final Rule in 1994. As a consequence, the landscape for O-1 visa sponsorship has changed dramatically.
The most recent opportunity for stakeholder feedback on Agent-as-Petitioner issues was provided by the USCIS Office of Public Engagement in a stakeholder teleconference on March 24th, 2011. Some questions were answered, many remain unanswered. Speakers intimated that forthcoming answers in an as-yet unpublished Executive Summary may be even more unpopular and may further destabilize industries already facing serious economic challenges. The most alarming reinterpretation suggested was that USCIS may start to consider O-1 performers to have violated status if they have accepted any new engagements with any “employer” not named in the original petition, even though the regulation at 8 CFR 214.2(o)(2)(iv)(D) explicitly says, “In the case of a petition filed for an artist or entertainer, a petitioner may add additional performances or engagements during the validity period of the petition without filing an amended petition.” If USCIS pursues the suggested interpretation, it will upset almost two decades of settled practice, and would render nearly every O-1 actor, dancer, musician and singer out of status when they seek to extend stay, renew their visa or file for a change or adjustment of status.
The crux of the difficulty is the Service’s insistence on trying to create formulaic and rigid rules for a visa classification whose primary usefulness has been its flexibility. It has highly subjective legal standards, which have allowed individual adjudicators to apply their real-world knowledge and common sense. The consistency so dearly cherished and sought after by agency hobgoblins has led to “clarifications” and “interpretations” that turn long-established agency practice on its head, and destroy well-settled expectations in the professional communities that rely most heavily on the O-1.
Briefly, an “agent” in the O-1 visa context may be a US entity formally in business as an agent or business manager, e.g. providing artist representation; or it may be one among several prospective US employers/presenters/entities that wish to engage the services of the beneficiary (“Agent performing the function of an employer”), or it may be an unrelated party in the US that has a tax identification number and is authorized by the employers/presenters/entities that wish to engage the services of the beneficiary to serve as their agent -solely for the limited purpose of filing a visa petition to facilitate these engagements.
As indicated by the preceding paragraph, many problems in USCIS attempts to achieve consistency in interpreting the O-1 regulations stem from use of the words “employer” or “employment.” Those words often do not accurately characterize how work is done in fields of endeavor for which the O-1 visa is used. Although they get paid, most professional athletes in non-team solo sports, most fine artists and performing artists do not usually work in an employer-employee relationship. This is not rare, arcane knowledge: many Americans know when they go to the movies that the actors are not salaried employees of the film studio, but get a flat fee per film, or union scale rates for the time worked. When they buy a CD, they know that Lady Gaga is not an employee of the record label. When they watch a pro golf tournament, they know that Tiger Woods doesn’t have a boss. Apparently, USCIS has distanced itself from common sense understanding of how these industries work, and adjudicators are being asked to set aside their real-world knowledge and apply formulaic standards of “employment” to industries where an employer-employee relationship is not the norm. This is particularly sad and disturbing because the fact that there are many types of work in the arts and entertainment that do not fit the traditional employer-employee model was a foundational reason for the creation of the O and P visa categories in 1991.
The Service’s attempts to characterize all working relationships as “employment” have done considerable damage to the O-1 visa category already, and appear likely to do more, particularly in the context of O-1 petitions by an agent.
Requirements for a petition by an agent now include:
1)A written itinerary of confirmed engagements, including dates, addresses, rates of pay, etc.;
2)Contracts between employers/presenters and the foreign beneficiary;
3)Written consent for the agent to serve as visa petitioner from all other employers/presenters listed on the itinerary;*
4)Contract or summary of oral agreement between agent & foreign beneficiary.
Requirements 1, 2 and 4 are contained in the O-1 regulations exactly as they have existed since the Final Rule published in 1994, although interpretations of the regulations have changed considerably in the past three years. The written consent requirement is not authorized by regulation (lawyers call this ultra vires), and it creates another burdensome addition to the growing ream of paperwork required for artist sponsorship. Form I-129, until recently 4 pages, has mushroomed to 7 pages; the O/P Supplement, previously only 1 page, is now 2 pages. The thinking behind this agent-consent requirement is foggy at best. When the agent- petitioner already has to provide the contracts for each engagement, what is gained by also requiring a separate document from each presenterconsenting to the agent’s service as visa petitioner? Does USCIS really think the agent could otherwise have obtained the contract details by stealth, without the consent and cooperation of each presenter?
Neither O-1 regulations nor the November 2009 policy memo require the contracts between employers and beneficiary to be signed – a good thing, as that would effectively kill off the possibility of any foreign artists touring in the US, since lead time for signed contracts inthe performing arts is extremely short. Indeed, as long as all the material terms of agreement are spelled out at least roughly - type of work to be performed, where and when, for what compensation – and if there is as yet no formal written contract, the version of the agreement furnished with a visa petition may be a brief Summary of Oral Agreement laying out all these terms, but it need not be not signed by either party.
However, an O-1 petitioner must also obtain advisory opinions from the relevant labor unions in any field where there is one, and this covers all the performing arts. The number of unions that must be consulted depends on the type(s) of work offered in the US. Some unions have more stringent requirements than USCIS. Notably, O-1 petitions involving aliens of extraordinary achievement in film and television must always include at least two union consultations – one from a labor organization, such as the Screen Actors Guild or the American Federation of Television & Radio Artists, and one from a management organization, the Alliance of Motion Picture & Television Producers. AMPTP requires all contracts or deal memos to be signed, effectively ratcheting up the documentation standard.
With regard to the itinerary and supporting contracts, for a while (in late 2009 and early 2010) USCIS was automatically sending a Request for Evidence in any O-1 petition where there was a gap in the proffered itinerary of 45 days or more. That practice and policy was formally withdrawn per a USCIS memorandum of July 2010, but adjudicators retain broad discretion to request additional evidence in support of the petition validity dates requested. Their discretion is now being used not only to inquire about gaps in the itinerary, or where the end date of the period requested is any later than the end of the last documented engagement, but also to challenge the very nature of the proposed tour itinerary as a single “event.” Adjudicators apparently now have discretion to truncate the requested validity period at some arbitrary point in mid-itinerary chosen by the adjudicator, not by the agent or tour manager. What one hand gives, the other takes away.
U.S. Citizenship and Immigration Services (USCIS) published an
October 7, 2009 News Release that shook the world of arts and entertainment,
restricting the rules for performing artists seeking O or P visas, and severely
curtailing the use of agents as petitioners.
Karin Wolman is admitted to the bar in the State of New York. Her practice is limited to U.S. Immigration & Nationality law.
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