The evidentiary burden for petitions for the O-1 Extraordinary Ability visa has been increased to mirror that for the EB-1 Extraordinary Ability visa.

Both the O-1 nonimmigrant and EB-1 immigrant visa classifications are important and flexible method to sponsor outstanding talent. Unfortunately, due to USCIS backlogs and processing delays, limited availability of other visa categories, makes the O-1 and EB-1 visas better alternatives for companies to employ foreign talent.

On January 21, 2022, USCIS issued memorandum confirming that it has overhauled its approach to adjudicating O-1A Extraordinary Ability and O-1B Extraordinary Achievement visa petitions. The guidance helps spell out the path to qualifying for the O-1 classification, but it also increases the evidentiary burden in O-1 visa petitions to mirror the agency’s approach to adjudicating EB-1A Extraordinary Ability petitions.

USCIS relies on a two-part analysis set out in Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Part one evaluates whether the petitioner has presented evidence satisfying three criteria. Part two, the petitioner must persuade the government that the evidence actually demonstrates outstanding achievement as compared to relevant peers. Below are some of key considerations in evaluating the viability of an O-1 or EB-1 petition:

• An individual’s “field” must be carefully defined and clearly articulated. Petitions should include a carefully defined field that is clearly articulates and frames the evidence in the light most favorable to the petitioner or applicant and in a manner that is easily understood by the reviewing officer.

• The Significant and Original Contribution criterion always should be argued. The petitioner is expected to provide objective evidence (i.e., work product) and subjective evidence of significance (i.e., recognition in the field). Providing an argument that an individual has made original contributions of major significance to their respective field can help mitigate the chance of receiving a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) from USCIS.

• Testimonial letters must be specific. USCIS dismisses the probative value of testimonial letters submitted to corroborate the achievements of an individual continues. As this is one of the most important pieces, and sometimes the only piece, of evidence a petitioner can provide to corroborate an individual’s contribution or achievement in their field, it is critical that testimonial letters must be carefully drafted and be specific, where they describe in detail (1) the individual’s achievement and (2) why it represents a significant development.

• Published Materials are vital evidence for EB-1B Outstanding Researchers. Petitioners should keep in mind that the EB-1B Outstanding Researcher visa classification differs slightly in regulatory criterion and overall eligibility standard from both O-1 and EB-1A visa petitions. The EB-1B requires petitioners to show “international recognition” for outstanding research in the field. In addition to the considerations above, EB-1B petitions should include a robust record of peer citation to the individual’s work and specifically reference the individual and their work in trade publications and online media. This is a crucial method of demonstrating that the individual’s research has been widely recognized in their respective field.

• Individuals in STEM-related fields have an advantage. USCIS typically takes a favorable look at accomplished individuals in STEM-related fields because STEM workers play a key role in sustained growth and stability in the U.S. economy.