by Ksenia A. Maiorova, Stuart J. Reich, and Karin Wolman
Ksenia A. Maiorova received her Juris Doctor degree from the Berkeley School of Law in 2007. After practicing Corporate Finance law in London for three years, she returned to the US to pursue her passion for the practice of immigration law. Ksenia is the Managing Partner of Maiorova Law Group, PLLC, where she focuses her practice, in significant part, on immigration solutions for professional athletes and other persons of extraordinary ability. Ksenia is rated AV Preeminent by Martindale-Hubbell, is rated Superb (10/10) by Avvo, and has been recognized as one of the Best Immigration Attorneys in Orlando by Expertise.com. She is a member of the Board of Directors and the Chair of the Unlicensed Practice of Law Committee at AILA’s Central Florida Chapter.
Stuart Reich is the Principal of the Law Offices of Stuart J. Reich, PLLC (founded 2003), and has been practicing immigration law exclusively since 1995. He is currently Co-Chair of the New York Chapter’s Corporate Practice Committee and the New York County Lawyers’ Association’s Immigration and Nationality Committee. He has previously served as Co-Chair of the Media and Advocacy Committee, the Corporate Practice Committee and Technology Committee for AILA‘ s New York Chapter. Mr. Reich speaks on immigration topics frequently for AILA, New York County Lawyers’ Association, and LawLine and has been named a “New York Super Lawyer“ (2011-present), with an AVVO 10/10 rating. He is a Graduate of Allegheny College and the Cleveland Marshall College of Law, and is admitted in New York, Ohio and Pennsylvania.
Karin Wolman is Principal of the Law Office of Karin Wolman, PLLC, serving businesses of all sizes, non-profit organizations and individuals, across industries from healthcare and the sciences, academia, finance and technology, to the performing arts and entertainment, fine and graphic arts and new media, culinary arts, fashion and beauty, architecture and design. Ms. Wolman is a frequent speaker at local and national conferences on topics in immigration law ranging from aliens of extraordinary ability to naturalization, for organizations including AILA, the Practising Law Institute, New Jersey Institute of Continuing Legal Education, and New York State Bar Association. She has been recognized among the top 5% of attorneys in the New York Metro area by SuperLawyers, and has a 10/10 “Superb” rating on Avvo. A graduate of Columbia University and UCLA School of Law, she worked at the Brooklyn Academy of Music when the O & P categories were first introduced . She has served since 2002 as moderator of the AILA InfoNet forum on O & P visas, as well as other forums, and numerous local committees for the New York chapter of AILA.
What to do when a client has more than one area of endeavor, or wants to pursue multiple kinds of work in the United States? Here we explore nonimmigrant and immigrant visa approaches to extraordinary ability cases where the foreign national practices multiple disciplines simultaneously, or engages in different occupations within the same discipline, or the nature of their work changes over time.
All three scenarios come up frequently in immigration practice. In the performing arts, practitioners will often encounter actors who also sing and dance, but unless they are disproportionately talented at singing or dancing, have gained most of their evidence of renown primarily as actors. Some actors also write screenplays, produce and direct. Some musicians and DJs evolve into music producers, moving gradually away from solo writing, recording, and performing their own work, toward more collaborative projects and behind-the-scenes work with other artists.
In sports, athletes often follow a career trajectory from competitive athlete to coach, to television commentator or educator. Scientists and engineers who have previously pursued a certain set of postdoctoral research interests may later switch gears and pursue very different research, and may be unable to continue with peer-refereed publication if they move to private industry, where non disclosure agreements and non-compete clauses are the norm. In cases where the client’s current field or occupation is one that did not exist at the outset of career, he or she may have a track record of accomplishments in related but different activities, such as an elite CrossFit athlete who previously competed in track and field, aerobics, gymnastics or weight-lifting; or a software engineer with expertise in information security now working on blockchain applications.
2018 AILA Immigration Practice Pointers
The challenges posed by these multifaceted cases are both retrospective, in terms of classifying past achievements and counting the regulatory criteria satisfied in each field, discipline, occupation or activity; and prospective, in terms of being able to characterize the offered work in the U.S. as “continuing” in the same field of endeavor, and to provide contracts or offers of future work in that same field of endeavor. In the 0-1 context, practitioners face the additional burden of obtaining labor advisory opinions approving each proffered type of work. In the immigrant setting, an Extraordinary Ability or National Interest Waiver (NIW) petition must also outline what substantial benefit to the United States will accrue from the foreign national’s future work.
The more diverse the work the foreign national plans to do under 0-1 status, the more peer advisory opinions will be required for that petition, especially in the performing arts where labor unions hold sway. The 0-1B petition for an actor-writer-producer-director will need peer advisories from SAG-AFTRA, the Writers Guild, the Producers Guild, and the Directors Guild, plus the Alliance of Motion Picture and Television Producers as the management organization, as well as Actors Equity if any stage acting is included in the offered projects.
Diversity of accomplishment and types of work in music is easier to accommodate, as the American Federation of Musicians and the American Guild of Musical Artists tacitly agree not to step on each other’s toes, so the singer-songwriter and the musician-DJ-mixer-producer will only need one peer advisory apiece. However, counsel must still prove that the foreign national’s past record of extraordinary ability is relevant, and is in the same “field of endeavor” as each proffered activity or type of prospective work in the United States. U.S. Citizenship and Immigration Services (USCIS) will take a divide-and-conquer approach, demanding three or more types of evidence of renown for each activity, both historical and prospective.
This should lead to ruthless editing by counsel. Where a client’s evidence of past achievements in a particular discipline, occupation or activity does not pass the 3-criteria-plus-final-merits sniff test under Kazarian,1 leave it out, unless there is a strong argument that it falls within the same field of endeavor as the primary activity, and the petition includes a prospective offer of work in that discipline, occupation or activity.
While it may be tempting to use a word or catch-phrase that covers all aspects of the foreign national’s work (e.g., “performing artist,” “fitness expert,” or “microbiologist”), the moniker chosen must embrace all the evidence of record, especially if there are previous 0-1 petitions on file. The language of past awards, press, publications by the foreign national, etc., must be taken into account when framing the past accomplishments and defining the scope of the field of endeavor.
Optimally, counsel and client should settle upon a descriptor of the field both broad enough to include all the past and prospective activities, and yet narrow enough to make the frog look big in relation to the pond described. If the awards and press all say that the foreign national is a great vocal artist, but the offered work is mainly as an actor, then USCIS will push back, as will the unions or any professional society consulted, with a charge that the foreign national has not established extraordinary ability in the field where work is offered. Where the offered employment is in the same sport, athletes-turned-coach must have evidence of their extraordinary ability as a coach, such as prizes and rankings of other athletes they have coached, and not just evidence of their own past success as a competitive athlete. 2
Each of the prospective offer(s) of work included must be in a field in which the foreign national has established a record of prior accomplishments and renown. While USCIS oversteps its authority when claiming that the offered 0-1 employment must require the services of a person of extraordinary ability, a requirement stricken from the regulations in 1994 as ultra vires the statute3, nevertheless, the offered work does need to fall somewhere within the claimed field of endeavor. It should be obvious, but an 0-1 petition that includes offers of subsistence jobs as a server, bartender, hostess or bellhop, or any low-paid hourly work, calls into question whether the foreign national really qualifies as extraordinary.
The notion of choosing an appropriate immigrant visa category is often a red herring, which must narrow to two choices. If the employer is willing and able to sponsor a residence case, in most instances, the foreign national will know that already. Most individual clients seeking counsel for possible EB-IA Alien of Extraordinary Ability or EB2 National Interest Waiver qualification do so explicitly because they must rely on self-sponsorship. Those who work in full-time single employer settings may have been informed that the employer cannot or will not sponsor them due to institutional policy, uncertain grant funding, or other undisclosed issues, such as financial conditions which may not survive a challenge for ability to pay the offered wage.
Where counsel is retained by the employer, multiple filings should be considered wherever sufficient criteria in more than one immigrant category are met, keeping in mind that the criteria are worded and weighted differently from one immigrant classification to the next.
Prizes and awards only count for Outstanding Researcher and Exceptional Ability (Schedule A, Group II) if the awards are internationally recognized, while lesser national prizes and awards do count toward Extraordinary Ability (despite frequent assertions to the contrary by adjudicators), and even narrower awards may count toward Exceptional Ability for NIW.
Memberships in professional associations only count toward Extraordinary Ability, Exceptional Ability for Schedule A, or Outstanding Researcher if the organizations require outstanding achievement of their members, typically where admission involves a nomination and peer voting process. Furthermore, memberships only count toward Outstanding Researcher and Exceptional Ability for Schedule A if the organization’s membership is international. Memberships in national pay-to-join professional societies meet the criterion for Exceptional Ability for a National Interest Waiver.
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Contributions by an individual of Extraordinary Ability must be both original and of major significance in the field. The contributions of an Outstanding Researcher to the field must be merely original. Those seeking Exceptional Ability for NIW must have evidence of significant contributions to the field, while Exceptional Ability for Schedule A requires original and major contributions to the field. Prepositions matter.
In immigrant cases where self-sponsorship is the only option, when assessing the evidence for Extraordinary Ability, National Interest Waiver, or both, one must take Kazarian4 and the resulting users Policy Memorandum (Kazarian memo)5 into account, as well as subsequent fallout.
The Kazarian memo affects how each regulatory criterion is weighed, first to reach the crucial three-criteria threshold, and then applies a persistently undefinable final merits test to EB IA cases. The evolving treatment of certain types of evidence under Kazarian continues to change over time, and to leak slowly into 0-1 adjudications.6 Recurring issues include:
- Plurals: some of the regulatory criteria (such as prizes or awards, membership in associations, publications about the alien, and scholarly articles), specifically refer to items in the plural. users has opined in stakeholder meetings that a single item could, but might not, satisfy such a criterion, and that E-1-1 Request for Evidence templates no longer contain language stating that a criterion has not been met because only a single piece of evidence was submitted7 The Adjudicator’s Field Manual notes, “although some items in the regulatory lists occasionally use plurals… it is entirely possible that the presentation of a single piece of evidence in that category may be sufficient.”8
- Awards: While the 0-1 regulations specifically include award nominations, in the immigrant context, Kazarian prohibits consideration of award nominations, and of prizes or awards given to teams, companies, or groups of people, allowing only awards granted by name to an individual, excluding whole industries where this is not standard practice. Major professional awards to a company or team can and should still be submitted with an EB-IA immigrant petition, but must be described and clearly marked as evidence of the petitioner’s leading or critical role for establishments or organizations with a distinguished reputation, under 8 CFR §204.5(h)(3)(viii), rather than as evidence of awards.
- Display At Artistic Showcases: users cannot make up its mind on this one. On the one hand, plenty of officers issue RFEs citing Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ (D. Nev. Sept. 8, 2008), a district court decision which is neither a precedent nor binding on the Service, for the proposition that this criterion applies only to visual arts exhibitions. However, their position is undermined directly by the Adjudicator’s Field Manual, which refers to “a significant artistic performance” under this criterion 9, and by a 1969 BIA precedent case, Matter of Masters 10, which identifies a golf tournament as a showcase. There are also a slew of more recent non-precedent AAO cases affirming that the work of singers, violinists, blues musicians and models has been displayed at artistic showcases.
The policy memo has similar application to NIW cases based on Exceptional Ability, to reach the three out of seven criteria, before petitioners can address the Dhanasar standard. Where a self petitioner can demonstrate NIW eligibility by meeting the threshold test as an Advanced Degree professional rather than as an Alien of Exceptional Ability, that avoids the applicability of Kazarian altogether and allows the case to proceed directly to analysis under the three prongs of Dhanasar,11 since the USCIS policy memo states on its face that it applies only to Aliens of Extraordinary Ability, Outstanding Researchers, and Aliens of Exceptional Ability under INA 203(b)(2)(A). Thus, where the foreign national possesses a relevant advanced degree, prudent counsel will avoid making an Exceptional Ability argument, and will instead use evidence which might otherwise have been used to that end to help satisfy the prongs of Dhanasar, showing that the work has substantial merit and national importance, that the foreign national is well-positioned to advance the proposed endeavor, and that, on balance, the interests of the United States will be better served by granting the National Interest Waiver.
Other factors relevant to satisfying the new third prong remain much as they were under the NYSDOTstandard12, such as evidence that the nature of the petitioner’s work is inherentlyproject based, involves multiple institutions, demands an unquantifiable skill set, or is otherwise fundamentally incompatible with the procedural requirements of labor certification. The two greatest improvements to the NIW standard are that the Dhanasar decision explicitly refuses to apply a geographic test to the question of whether the petitioner’s work is of national importance, and it overcomes the pernicious impact of NYSDOT footnote 6, which demanded that the petitioner show some degree of influence on the field as a whole, by observing in Dhanasar footnote 6 that “there are some talented individuals for whom past achievements are not necessarily the best or only predictor of future success.”13
These are merely guideposts along an ever more treacherous road to securing a visa status that will accommodate candidates with multiple talents in all the kinds of work they wish to do in the United States. Where the law doesn’t reward the “renaissance person” possessing a variety of talents, the practitioner must step in to define a coherent area of extraordinary ability.
1 Kazarian v. USCJS, 596 F.3d 1115 (9th Cir.2010).
2 Lee v. Ziglar, 237 F.Supp. 2d 914 (N.D. Ill. 2002).
3 Present in the original 1991 regulation at 8 CFR 214.2(o)(3)(iii), this requirement was stricken by the Final Rule amending the regulations, at 59 Fed. Reg. 41818, 41820 (Aug. 15, 1994).
4 Kazarian v. USCIS, 596 F.3d 1115 (9th Cir.2010).
5 USCIS Memorandwn, “Evaluation of Evidence Submitted with Certain Form I-140 Petitions,” PM 602-0005.1, (Dec. 22, 2010).
6 Matter of(name not provided), California Service Center, AAO (Jan. 10, 2012).
7 AILNSCOPS Stakeholder Teleconference Notes (July 15, 2015), AILA Doc. No. 15082016; and AILNSCOPS Stakeholder Teleconference Notes (Sept. 24, 2014), AILA Doc. No. 14100844.
8 AFM ch. 22.2(i)(l)(C), Additional Adjudication Guidelines.
9 AFM ch. 22.2(i)(l)(E)(7).
10 13 I&N Dec. 125, (D.D., 1969).
11 Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).
12 MatterofNYSDOT, 22 I&N Dec. 215 (Act. Assoc. Comm.1998).
13 Id. at 888.
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