The Trump administration has stressed that H-1B visas should only be used to bring the most talented and brightest foreign workers to the United States. As this is now the policy of the United States Citizenship and Immigration Services (USCIS), they have severely limited the issuances and renewals of H-1B visas. The thing is, the United States already has a visa that carves out space for the best and brightest, the O-1 visa, also known as the aliens of extraordinary ability. Unsurprisingly, it has not only become more difficult to obtain an H-1B, it has also become more difficult to obtain an O-1 visa as well.
Obtaining an O-1 Visa
O-1 visas are meant for people who have demonstrated extraordinary ability in science, the arts, business, education, or athletics. The USCIS guidelines only say that the level of expertise required is that of a person who represents a small percentage that risen to the very top of their field.
The guidelines do offer some examples of supporting documents that would potentially qualify. International awards such as a Nobel Prize or major league MVP, scholarly contributions, published articles in professional journals, high salary relative to the field, and membership in an organization that requires high achievement are all the types of evidence that can help grant an O-1.
There is a separate O-1 type, the O-1B, for those with extraordinary ability in arts or in motion pictures. In the field of art you would have to show that you have distinction and recognition in your field that is substantially above the average person in the industry. The type of documents that are required include nominations or wins for an Academy Award or a Grammy, starring role in a major production, significant critical acclaim, or high salary in relation to the field.
Making Obtaining an O-1 More Difficult
If you think winning an Oscar is a hard enough accomplishment, the Trump administration wants to make things even more difficult for those applying for O-1s. To begin with, costs have gone up. The premium processing fee, which allows for expedited processing of an application, has been increased from $1,225 to $1,410 dollars.
USCIS can now also deny an application outright if they feel there is not enough evidence in the documents provided to grant an O-1. Previously, an O-1 applicant may have been asked for additional documents to support the application, known as a request for further evidence (RFE). While USCIS may still send an RFE, they may also deny the application at their own discretion without allowing the applicant an opportunity to amend.
O-1 applicants may also be prevented from rebutting a negative consultation letter from a labor union. O-1 applicants generally must obtain a consultation letter from a labor organization associated with the applicant’s field. If the labor organization or union evaluates the applicant believes they are qualified they will approve by issuing a letter of no objection. In prior administrations, if the union had an objection they would issue a negative consultation letter to the applicant to include with the application. The applicant could then offer a rebuttal to the letter to rehabilitate their chances of still being granted an O-1. USCIS under Trump has, however, made a subtle change that allows labor unions, peer groups, or management organizations to submit a negative consultation letter directly to USCIS. This policy shift was meant to reduce fraud by O-1 applicants but may be denying legitimate applicants an opportunity to explain their side of the story.
There will also be issues for those that have already been granted an O-1 and are seeking an extension. In the past, deference was given to a prior adjudication of an O-1 applicant’s status. That is, if an O-1 applicant had previously been deemed an alien of extraordinary ability and that same applicant was applying for an extension of their stay, USCIS as a default would trust that previous adjudication. Now, O-1 extensions are treated the same as new applications and must be reevaluated from scratch. USCIS no longer has to give any weight to a prior determination and can deny an extension even if the O-1 applicant has had no change in circumstance and was declared eligible previously.
USCIS is now interpreting qualifying O-1 criteria much more narrowly than in years past. One of the best illustrations of this narrowness is the high salary requirement. High salary is a relative metric that the USCIS previously allowed to be proved by comparing the applicant’s salary to data for salary averages in a given occupation from the Bureau of Labor Statistics (BLS). Employers could make a statement regarding the applicant’s compensation and the stated compensation would be compared against BLS data. USCIS now views this comparison as too simplistic. They now require specific corroborating evidence of the applicant’s salary beyond just statements from the employer. BLS data is also not sufficient, as the O-1 petition must now show comparisons between salaries that are specific to the exact field the applicant is in.
USCIS will now even go as far as to nitpick whether a publication relating to the petitioner would be sufficient evidence. For instance, it is not enough if a trade publication or journal discusses the petitioner’s work, the article must directly discuss the petitioner his or herself. Likewise, publications authored by the applicant must be in field specific journals or periodicals. Publishing in general media is no longer enough.
All across the board the Trump Administration is making obtaining visas more difficult than ever before. As if obtaining an O-1 was not hard enough already, USCIS has now introduced more hurdles to being granted a visa. This further highlights the need for visa petitioners to seek experienced legal counsel. It seems unlikely that the USCIS under Trump will be making things easier anytime soon. It is almost guaranteed the USCIS will continue to make things more difficult for applicants.