Are you “extraordinary?” If so, the United States wants you. But first, you have to prove you are extraordinary by the increasingly narrow and subjective definition of “extraordinary ability.” Not so simple.
Internationals who have an extraordinary ability in the arts, demonstrated by sustained national or international acclaim, and who seek to enter the United States to continue work in the area of extraordinary ability, may qualify for an Extraordinary Ability in the Arts, an O-1B visa. There are a number of advantages to qualifying for an O-1B visa, including a three year initial period of stay and unlimited extensions thereafter.
Unfortunately, the O-1B visa application process is often complex and convoluted, requiring detailed evidence of an applicant’s “extraordinary ability.” Whether the US Citizenship and Immigration Service (USCIS) grants an O-1B visa depends on a subjective evaluation of the alien’s past and prospective contribution to his or her field. In addition to being subjective, there are reports of the standards being inconsistently applied by the USCIS.
What is an O-1B Visa?
The 1976 Immigration and Nationality Act was created to give preference to immigrants who are members of the professions or who, because of their extraordinary ability in the sciences or the arts, would substantially benefit the national economy, cultural interests, or welfare of the United States.
In 1990, the Act was amended to create a separate category of visas for non-immigrant aliens with extraordinary ability in the arts, sciences, and athletics. Called “O” visas, they required nonimmigrant aliens to demonstrate extraordinary ability in their field through “sustained national or international acclaim” and “extensive documentation.” Today there are 2 sub-categories of O-visas: O-1A is for extraordinary ability in the sciences, education, business, or athletics; and O-1B is for individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry. The standard of proof for O-1A is higher than O-1B. For O-1A, the applicant has to show that he/she is one of the few who has risen to the top of his/her field; whereas for O-1B a demonstration of distinction is sufficient.
The Evolving Definition of “Extraordinary Ability”
The 1990 Act’s definition of “extraordinary ability” is often cited as being vague—it does not provide specific criteria for determining sustained national or international acclaim, and does not indicate how much evidence is needed for “extensive documentation.” The Act also did not provide any examples of evidence of extraordinary ability. To give clarity to the meaning of extraordinary ability, the USCIS has developed regulations for O-1B visas. Beginning in 1993, these regulations have become increasingly detailed and restrictive.
The 1993 regulations defined extraordinary ability as “a level of expertise indicating that the individual is one of that small percentage who has risen to the very top of the field.” The USCIS listed ten standards to illustrate extraordinary ability in the arts. If the visa applicant could satisfy three of the ten standards, he or she would be granted an O-1B visa.
In recent years, the USCIS has restricted the definition of extraordinary ability beyond the language of the statute. For example, in 2002 the USCIS changed the procedure for documenting extraordinary ability in the arts by creating a two-part test. Attempting to ensure that O-1B visas were reserved for “renowned, leading, or well-known artists” and their concept of “outstanding, notable, or leading” persons in the motion picture and TV industries, the USCIS gave an increasingly restrictive definition to the term “extraordinary ability.” First, an applicant could provide evidence that he or she had won or been nominated for a significant national or international award, such as an Academy Award or a Grammy, or he or she could provide evidence of the 1993 standards. Second, the USCIS would then consider whether the evidence provided demonstrates extraordinary ability. This second step allows the USCIS discretion to refuse visas to artists who would otherwise qualify. This more-restrictive definition of “extraordinary ability” has prevented the immigration of some extraordinary foreign artists.
Challenges and Successes for O-1B/Extraordinary Ability Aliens
For O-1B purposes, “arts” can mean a wide variety of performance art (dance, singing, acting, choreography, mind-reading/mentalism, etc.), writing, and graphic and traditional art. At McCormick & O’Brien we regularly represent clients filing O-1B petitions in all shapes and forms of “arts.”
Despite being a fairly new/up-and-coming field of dance, we have had great success filing O-1B petitions for Hip-Hop dancers with distinguished careers. O-1B petitions are deceivingly simple on their face, prompting one of our clients to ask if he really needed a lawyer to file. However, by the time we started the case and successfully got his O-1B approved he had changed his mind. “There was a lot of work and a whole lot of paperwork. Having a good lawyer was an immense help.” This client hit the nail on the head with his summation of “a whole lot of paperwork.” A trusted advisor as attorney can make the process seem easy to the client. In the end this particular client’s petition was approved within a week.
In contrast, a similar case, a hip-hop dancer with extraordinary skill and accomplishments, should have also been a quick approval, but the case was kicked back for additional documentation – perhaps as proof of USCIS adjudication inconsistency and no clear definition of “extraordinary ability.” Upon a thorough rebuttal, the case was eventually approved, but not before a month-long delay, causing the client to miss performance opportunities in the US.
Many of these talented artists/performers have no problems providing documentation showing their outstanding work, but they struggle with finding the prerequisite US petitioner that would serve as an agent or employer for their work in the US. An example of this is one of our ongoing cases with a phenomenally talented mentalist/street magician (in the same genre as David Blaine in the US), who is very popular and well-known in Europe. He is having a hard time finding a US sponsor because what he does is not mainstream, and the fact that he is not currently in the US makes it very difficult for him to make relationships or network to find a sponsoring agent or employer. The proverbial deck is stacked against him, you might say.
Future of the O-1B Visa
To make the O-1B visa process more consistent and easier on the part of both the adjudicator (USCIS) and applicant alike, removal of discretion from the final merits review on the part of the USCIS may be the solution. Instead, if an applicant has provided documentation of either a major award or of three lesser achievements from the USCIS’s list of ten, then that applicant should, under usual circumstances, qualify for an O-1B visa. If the USCIS is worried about limiting the visa to truly extraordinary artists and not flooding the application process with mediocre talents, then it should create a regulation that provides a more specific and detailed definition of “extraordinary ability” and include examples of evidence that would satisfy each of the 1993 standards.
Having a clear definition of “extraordinary ability,” will also help prevent confusion in the USCIS adjudication process as well as help applicants submit proper documentation. Since a determination based on misguided discretion will only lead to further confusion and misapplication of the regulations, a review that avoids reliance on discretion would lead to a proper standard of adjudication for the USCIS.
Doing away with the “US Petitioner” requirement would also ease the process, but I don’t think that will happen anytime soon.