Blog

May 9, 2011

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 scopsrfe@dhs.gov (and a caller noted they should also be provided to reports@aila.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.

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