How to Prepare a
1. What Is Extraordinary Ability, and How Do I Qualify as Extraordinary
The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and have been recognized nationally or internationally for those achievements.
How does the USCIS determine that an individual possesses “extraordinary ability”? For one thing, the individual must have sustained national or international acclaim. This means that the alien applicant is widely recognized as being one of the very best in the field.
But most people do not qualify as "extraordinary". With respect to the O-1A visa in the areas of science, education, business or athletics, extraordinary ability is defined as “a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor.”
For O-1B visas in the field of arts, motion picture or television, the USCIS uses the term “distinction,” which is “a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.”
To qualify for an O-1B visa in the movie or television industry, the individual must demonstrate extraordinary achievement evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable or leading in the motion picture and/or television field.
2. The O-1 Alien Is One of the Small Percentage of Individuals
The O-1 visa is a non-immigrant employment-based visa classification for foreign nationals who can demonstrate the sustained national or international acclaim and recognition for achievements in the science, education, business or athletics. It requires the employer to file a Petition for a Nonimmigrant Worker (Form I-129), along with evidence of the individual’s extraordinary ability.
Spouses and children of O-1s are admitted in the non-work eligible O-3 visa category. Usually, O-1 petitions are processed by USCIS on an expedited basis. O-1 visa applications are successful for positions at major teaching hospitals, faculty positions and some private jobs, if the selective nature of the position, the reputation of the employer, and the credentials of the candidate can be established.
The O-1 applicants in the science, education, business or athletics must show extraordinary ability "demonstrated by sustained national or international acclaim." The definition of "extraordinary" differs depending on whether one is an artist or entertainer as whether one is one of the other fields. Within the entertainment field, there are special criteria for people affiliated with motion pictures or television production.
The extraordinary ability in the field of science, education, business, or athletics means a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor.
There are three different standards for the O-1 category:
1) the most exacting standard applies to aliens in the sciences, education, business, and athletics (O-1A);
2) a much less rigorous standard applies to individual aliens in the arts (O-1B); and
3) an intermediate standard applies to aliens of extraordinary achievement in the motion picture or television industries (O-1B).
The submission of documents satisfying the initial evidentiary criteria does not in and of itself establish eligibility for O-1 classification. The standard for an alien of extraordinary ability in the O-1 classification is that the alien is one of the small percentage of individuals who have risen to the very top of their field of endeavor.
The evidence submitted by the petitioner is not the standard for the classification, but merely the mechanism to establish whether the standard has been met. Accordingly, where a petitioner provides the requisite initial evidence, USCIS then determine whether the record viewed in its totality shows extraordinary ability in the arts.
Furthermore, an O-1 petition may only be filed by a United States employer, a United States agent, or a foreign employer through a United States agent. In addition, the petition must be accompanied by copies of any written contracts between the petitioner and the beneficiary or, if there is no written contract, a summary of the terms of the oral agreement under which the individual will be employed.
The record should also include an explanation of the nature of the events or activities, the beginning and end dates for the events or activities, and a copy of any itinerary for the events or activities.
3. The Request For Evidence for O-1 Extraordinary Ability Petition
After your organization filed a petition for nonimmigrant worker Form I-129 with U.S. Citizenship and Immigration Services (USCIS), seeking to classify the beneficiary as a nonimmigrant worker with extraordinary ability, you may receive a Request For Evidence (RFE) notice from USCIS to request that the beneficiary’s extraordinary ability must be demonstrated by sustained national or international acclaim. In addition, the beneficiary must be recognized as prominent worker in his or her field of endeavor.
For USCIS to process your petition, and determine if the beneficiary is eligible, additional information is required to response the RFE requests. The Request for Evidence may explain why the submitted evidence is deficient and requests additional evidence to render a final decision. The RFE request may provide suggested evidence that you may submit to satisfy each requested item.
If you believe that any of the deficiencies were determined in error, you may submit an explanation with supporting evidence.
Please note that you are responsible for providing evidence that best shows that the petitioner and the beneficiary meet all the requirements, and are eligible for the requested O-1 classification at the time you filed the Form I-129. You are also responsible for the statements made in your petition cover letters, which should be supported with corroborating evidence.
4. Understand the Request For Evidence (RFE)
After the USCIS Form I-129 - Petition for a Nonimmigrant Worker submission, it is not very rare that the petitioner receives a Request For Evidence (RFE) notice from an USCIS Service Center. In some occasional situations, a few petitioners may receive a letter of Intent to Deny (ITD). The possibility that an O1 visa petition may get RFE changes from one USCIS Service Center to another USCIS Service Center.
The RFEs’ contents also very significantly. Usually, there are two kind of RFEs. The first kind of RFE is called the “broad brush” RFE by immigration community, which generally asks the petitioner to prove the beneficiary's eligibility for the O1 category according to the basic criteria setup in the regulation.
For this kind of broad RFEs, it seems like that the USCIS Service Center believes that the petitioner did not submit any noteworthy supporting materials at the initial petition submission to prove their beneficiary's eligibility for O1 visa. USCIS had regulations and internal memos to require a supervisor’s approval for any adjudicator to issue such “broad brush” RFE. But in the practical circumstances, even this kind of RFEs violate the USCIS’ regulations, the petitioner still needs to reply the RFE requests one by one, with new evidence and related supporting materials.
Another kind of RFE will ask the petitioner to submit specific supplement materials. For this kind of RFEs asking for particular evidence or supporting materials, sometimes it is difficult for a petitioner to provide the exact required documents.
5. The Request For Evidence - the Burden of Proving the Beneficiary's Eligibility
For O1 visa application, the burden of proving eligibility for the benefit sought remains entirely on the petitioner, and the petitioner has to meet that burden. When your O1 petition has been poorly documented, you may get a notice of unfavorable decision from the U.S. Citizenship and Immigration Services (USCIS), a written statement of the reasons for the negative outcome, and an explanation of how to appeal.
As an alternative, the USCIS may request for additional information or called Request For Evidence (RFE), by sending petitioner a letter and a list of information and documents it needs to determine the beneficiary's eligibility. The petitioner must respond to such a request within the specified time period, or the petition will be decided on the basis of the already submitted documents.
An RFE request from USCIS must be in writing. It must specify the type of evidence required, and give adequate notice and sufficient information to respond to the RFE. The USCIS indicated that the time allowed for responding to an RFE will generally be about 3 months.
The RFEs are a source of many complaints and problems at the USCIS, second only to delays due to FBI name checks. Some of the most common problems with RFEs include requests for information already submitted, and requests for duplicate documents because they are missing some information. RFE requests in such cases do not provide an explanation of exactly what information is missing.Also, USCIS has flexibility in setting an appropriate length of time for petitioners to respond to RFEs. It is difficult for the petitioner to contact the USCIS Service Center which issued an RFE to obtain more information or clarification with regard to the RFE. The regulation does not permit any extensions of time to respond to the RFE.
6. USCIS Will Determine Whether the Totality of the Record and the Quality of the Evidence Shows Extraordinary Ability
The U.S. immigration regulation establishes O-1 classification for an individual who has extraordinary ability in the sciences, arts, education, business, or athletics that has been demonstrated by sustained national or international acclaim, whose achievements have been recognized in the field through extensive documentation, and who seeks to enter the United States to continue work in the area of extraordinary ability.
Department of Homeland Security (DHS) regulations include the following definition: "Extraordinary ability in the field of science, education, business, or athletics means a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor."
Next, DHS regulations set forth the initial evidentiary criteria for establishing a beneficiary's sustained acclaim and the recognition of achievements. First, a petitioner can demonstrate a beneficiary's sustained acclaim and the recognition of the individual's achievements in the field through evidence of a major, internationally recognized award, such as the Nobel Prize.
If the petitioner does not submit this evidence, then it must submit sufficient qualifying evidence that meets at least three of the eight categories of evidence. If the petitioner demonstrates that the criteria in this section do not readily apply to the beneficiary's occupation, it may submit comparable evidence in order to establish the individual's eligibility.
The submission of documents satisfying the initial evidentiary criteria does not, in and of itself, establish eligibility for O-1 classification. Accordingly, where a petitioner provides qualifying evidence satisfying the initial evidentiary criteria, USCIS will determine whether the totality of the record and the quality of the evidence shows extraordinary ability.
7. What You Should Do after Receiving the Requests For Evidence
When you receive the RFE, note the postmarked date on the front of the envelope, and write the date received on the back of the envelope. The RFE will usually give you certain days from the date of the issue of RFE to send back a response. It is important to count out those days including weekends and note on your calendar the date the response is due back to the USCIS Service Center. Make a copy of the RFE, then use the copy to mark up, highlight and or make notes on so that the original remains clean, and keep the original with the cover sheet and return envelope with bar code.
Read through the RFE to get your first impression. Then go back through with a highlighter - marking the problem areas and taking careful note of what exactly it is that immigration officer is looking for. Think about what the best evidence would be.
Sometimes, an RFE will cite Board of Immigration Appeals (BIA), Administrative Appeals Office (AAO), or Board of Alien Labor Certification Appeals (BALCA) Cases in addition to Supreme Court or Courts of Appeal cases. It is always worth reading what exactly those cases say as often they are being cited out of context by the government bureaucrat. The examiners seem to go to a database and cite whatever seems to be on point but are not always on point.
It is not at all unusual for receiving Requests For Evidence from USCIS regarding O1 petition or extension. When your petition can not be immediately adjudicated, a request for additional evidence will be sent to you. The increase in O1 RFEs and Denials is driven by USCIS’ perspective and other reasons:
Some cases are fraudulent;
Discrimination against small companies or employers;
Protecting U.S. jobs;
Untrained USCIS examiners;
To reply the O1 visa RFE requests, recycling briefs and arguments may not work. Tough cases require time to to evaluate RFE requests, to get evidence, and to write the responding cover letter. During the response time period, you may:
submit all of the requested evidence;
submit some or none of the requested evidence, and
ask for a decision based upon the record; or withdraw the petition.
If a correction is needed to the petition, a copy of the Form I-129 will be included with the response of the Request For Evidence. The correction can be made on the copy, then it will be included in the formal USCIS files of your case.
Also, no extension of the RFE response time is possible. Please also note that no interim benefits will be granted during the time waiting for additional evidence to be submitted. If a response is not received within the time limit, the case will be considered abandoned and denied.
1) It is extremely important that the letter requesting evidence be returned with the evidence, and that the special mailing envelope provided be used. Failure to do so will delay processing of the case, and may result in a denial due to abandonment.
2) Evidence submitted without the letter and/or proper return mailing envelope will be difficult to match up with the pending case, and may be treated as general correspondence.
If required documents are easy to obtain, these documents typically will be submitted quickly. If the documentation is more complex or difficult to obtain for any reason, then the longer time is often needed. The ease or difficulty of obtaining documentation is not always obvious.
Many petitioner know that it can be challenging to coordinate the necessary documentation. It is not uncommon to have to acquire documents from multiple individuals - the employer, the foreign national, and from a number of other person. Some of these sources may be traveling abroad.
8. The Emphasized Requirements for O-1A Visa Petition
To qualifies as an alien of extraordinary ability as scientists, educators, business people and athletes, those foreign nationals must have sustained national or international acclaim, and their achievements have been recognized in the field through extensive documentation. In addition, the foreign person is seeking to enter the United States to continue to work in the field of endeavor that is the subject of the acclaim.
USCIS regulation of 8 C.F.R. § 214.2(o)(3)(iii) requires that to qualify for O-1A classification, an alien must "demonstrate sustained national or international acclaim and recognition for achievements in the field of expertise by providing evidence" of either receipt of a major, internationally recognized award such as the Nobel Prize or documentation of at least three of the following:
1) Receipt of a lesser nationally or internationally recognized prize for achievement in the field. This could include a fellowship, a competitive assistantship.
2) Membership in associations in the field that require "outstanding achievement" of their members. This standard is relatively vague. Associations that are open to all members of a given profession can be considered, but associations that limit membership to only the most accomplished members of the profession are certainly more valuable.
3) Material published about the alien in major trade publications or other major media. The material must concern the alien’s work in the field. Publications could range from journals specific to the field to major newspapers. The materials are not limited to print;
4) Serving as a judge of others in the alien’s field either individually or on a panel. Sitting on the Nobel Prize Committee would fulfill the requirement, as would participating in the peer review process of a scientific article or acting as a member of a thesis review committee.
5) Original, scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field. This standard is wide open. Basically, the USCIS will base its judgment of the alien’s contribution on the letters of support that others in the field submit. So letters from recognized authorities in the field who consider the alien’s contribution is original and significant will satisfy this requirement.
6) Authorship of scholarly articles in the field. This refers to articles that the alien wrote concerning his or her work rather than material written about the alien by others, as is the case with standard 3 above. Again, the publications can range from major trade journals to mass media. Although the regulations refer specifically to "articles," other forms of publication such as visual media should fulfill this requirement.
7) Performing a critical or leading role for organizations that have a distinguished reputation. This could be acting as curator for a Museum of Art, or serving as an essential researcher for an important laboratory.
8) Commanding a high salary in the field. The regulation requires that the alien’s salary or remuneration be high in relation to others in the field, so a teacher needs not make as much as a professional football player.
Generally, the person must satisfy at least 3 of 8 criteria for establishing extraordinary ability for O-1A petition.
9. The Emphasized Requirements for O-1B Visa Petition
For one working in the arts and entertainment industry, the USCIS defines the person with Extraordinary Ability as having a high level of achievement in the arts as a level of prominent or well-known. This category is not simply limited to performers but also to individuals who are active behind the scenes. These may include lighting designers, choreographers, conductors, costume designers, music coaches, animal trainers, and fight masters.
USCIS regulations define "arts" to include "any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts and performing arts."
Persons coming to work in the arts or entertainment must show "extraordinary ability" by demonstrating they have "distinction" in their field. Here, distinction means a "high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts." To demonstrate the "distinction," the petitioner must demonstrate that:
(A) the beneficiary has been nominated for or has received a significant national or international awards or prize such as an Academy Award, an Emmy, a Grammy, a Director's Guild Award, or
(B) the beneficiary meets at least three of the following six forms of documentation:
1) Evidence that the alien has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity released, publications contracts, or endorsements;
2) Evidence that the alien has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications;
3) Evidence that the alien has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials;
4) Evidence that the alien has a record or major commercial or critically acclaimed success as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications;
5) Evidence that the alien has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the filed in which the alien is engaged. Such testimonials must be in a form which clearly indicates the author's authority, expertise, and knowledge of the alien's achievements; or
6) Evidence that the alien has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidence by contracts or other reliable evidence.
Generally, the person must satisfy at least 3 of 6 in criteria for establishing extraordinary ability for O-1B purposes. Other "comparable evidence" to demonstrate "distinction" can also be accepted.
If the above standards do not readily apply to the beneficiary’s occupation in the arts, the petitioner may submit comparable evidence in order to establish eligibility, but this exception does not apply to the motion picture or television industry.
10. The Requirement for Request For Evidence Response
The Request For Evidence notice means that the petition documentation submitted is not sufficient to warrant favorable consideration of your petition. Your response must be received in the USCIS Service Center by the date indicated at the RFE notice.
Your case is being held in the USCIS Service Center pending your response. Within this period you may:
1) Submit all of the evidence requested;
2) Submit some or none of the evidence requested and ask for a decision based upon the record; or
3) Withdrew the application or petition. (It is noted if you request the application or petition be withdrawn, the filing fee cannot be refunded.)
You must submit all of the evidence at one time. Submission of only part of the evidence requested will be considered a request for a decision based on the record. No extension of the period allowed to submit evidence will be granted. If the evidence submitted does not establish that your case was approvable at the time it was filed, it can be denied by USCIS.
If you do not respond to the RFE request within the time allowed, your case will be considered abandoned and denied. Evidence received in USCIS after the due date may not be considered.
If you submit a document in any language other than English, it must be accompanied by a full complete English translation. The translator must certify that the translation is accurate and he or she is competent to translate. Note: You must submit the requested foreign language document along with the translation.
USCIS Service Center also requires that the RFE notice letter should be mailed back and placed on top of your response: "Place this entire letter on top of your response. Submission of evidence without this letter will delay processing of your case and may result in a denial. Please use the enclosed envelop to mail the additional evidence requested back to this office."
11. How to Organize the Evidence Accompanied with the O-1 Visa Request For Evidence Response
Follow the tips below for how to organize the evidence accompanied with the O-1 visa Request For Evidence response:
1) Provide all required documentation and evidence with the O-1 visa RFE. O-1 visa application may be denied in the instances where the required evidence described in the Request For Evidence notice are not initially provided. If providing photocopies of documents, provide clear legible copies.
2) All foreign language documents must be submitted with a corresponding English translation. The English translation must be certified by a translator who is competent to translate and must verify in writing that “the translation is true and accurate to the best of the translator's abilities.“ It is helpful if the English translation is stapled to the foreign language document.
3) If documenting the alien's publications or citations of the alien beneficiary's work, highlight the alien's name in the relevant articles. It is not necessary to send the full copy of document, or paper written by the alien beneficiary, or one in which the alien beneficiary's work has been cited. Include the title page and the portions that cite the alien's work.
4) Tab and label the evidentiary exhibits at the bottom of the first page of each exhibit, and provide a list of the evidentiary exhibits and the eligibility criteria that each exhibit is submitted to establish for petitions supported by a substantial amount of documentation. An exhibit that is being provided to meet multiple eligibility criteria should be so identified in the exhibit list.
12. Get Help for Your RFE Response, and Eventually Obtain Your O-1A Visa or O-1B Visa
The burden of O-1 visa petition approval rests with the petitioner. The petitioner should provide substantial evidence of O-1 visa criteria that the alien could satisfy. If the alien applicant is qualified, then the success depends largely on the way the application is presented to USCIS.
If you get a Request For Evidence (RFE) notice for your O-1 visa application or extension from an USCIS Service Center, it is necessary that you must work hard to provide requested evidence in a short time, and persuade the USCIS adjudicators to approve your case. It is critical to appropriately and proficiently reply the Request For Evidence. Incorrect response of the RFE will directly result in your O-1 visa application or extension rejection.
To help you replying the RFE, we provide the high quality and case-proven Complete Do-It-Yourself Package of Request For Evidence for O-1A / O-1B Visa Application or Extension In the RFE package, we present methods of analyzing RFE questions, RFE replying strategies, means of strengthening your case, detailed RFE cases analysis, sample cover letters, and more. With the RFE package, you get all the information you need and step-by-step knowledge and strategies of how to prepare an efficient, professional, and complete response to your RFE notice of O-1 visa application or extension, and eventually get your O-1 visa approval.
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