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John Khosravi: Hi, everyone. Welcome to Episode 72 of The Immigration Lawyers Podcast. This episode is going to be different from my usual podcast because I'm not going to be hosting this episode. My emphasis in this podcast has always been about continued education for the national immigration bar and discussions and analysis about the practice of immigration law. So I decided to have a guest host today to talk about a topic that I don't focus on myself.
My well-experienced colleague, business immigration attorney Giselle Carson, has been kind enough to present on the O-1A visa as an alternative to the H-1B visa. You can learn more about Giselle from my interview with her in Episode 70. This episode is a great tutorial for beginners interested in representing O1 clients, as well as more experienced practitioners, as Giselle discusses some of her own cases and AAO decisions on this topic. I hope you enjoy it as much as I did.
Finally, if you have any questions or comments, please email me directly at firstname.lastname@example.org. Also, please subscribe, like and review the podcast on iTunes. Moreover, you can also subscribe and follow this podcast on our YouTube page, The Immigration Lawyers Channel. Without further ado, let's get it started.
Welcome to The Immigration Lawyers Podcast. I am the host, attorney John Khosravi. And I practice US immigration law exclusively. For more information about the program, please visit www.immigrationlawyerspodcast.com. Please note that this recording is informational only. It does not constitute legal advice. Please consult with a licensed attorney for specific legal guidance that suits your case. Also, this recording is copyrighted and written permission is required for rebroadcasting. For more information about me, please visit www.jqklaw.com.
Giselle Carson: Hello there, and welcome to The Immigration Lawyers Podcast. Today, we are going to talk about the O-1A visa as an alternative to the H-1B visas. My name is Giselle Carson. I am a business immigration attorney and a published author. I invite you to connect with me on LinkedIn and check out our show notes so that you get more information on what we're going to talk about today. And now, let's get on to the show.
US employers need foreign talent to add innovation and diversity to their workforce and to fill the critical talent needs and the skill gaps that we currently have. But there are no cap-subject H-1Bs available until April and October of next year is when those visas become valid. As immigration attorneys we look for alternative ways to provide employment authorization to our clients and give them options.
One of the options that we have been using successfully for those that qualify is the O-1A visa. During this podcast, we're going to be sharing tips and talk about the current trends and AAO decisions that are helping us and hopefully will help you to prepare the strongest O-1A petitions. I am grateful to John Khosravi for providing this forum and also to Gabbie Buenano, who is with my team, and she's joining me to facilitate this podcast.
Gabbie's family is from Ecuador. And in addition to being our immigration legal assistant, she's also an avid photographer, a sports fan and a tech lover. So welcome, Gabbie, what is the first question that you have for me relating to the O-1A?
Gabbie Buenano: Well, thank you for letting me join you. I'm excited to learn about the O-1A visa. What is an O-1A visa and who can take advantage of this visa?
Giselle Carson: The O-1A is a non-immigrant employment-based visa, for foreign nationals who can demonstrate that they have sustained national or international acclaim in very specific areas. So sciences, education, business or athletics. When considering an O-1A, that's one of the first things that I'm going to check off my checklist - is it applicable to the sciences, education, business or athletics. For this particular visa, the beneficiary cannot self-sponsor, so they require either an employer or an agent who can file the petition on behalf of the beneficiary.
Gabbie Buenano: Are there variations to the O1-A visa?
Giselle Carson: Yes. For example, there is the O1-A, which is the focus of our talk today. And that is for extraordinary ability aliens in those specific fields. Then there is the O-1B and that is for individuals with extraordinary ability also but particularly in the arts or extraordinary achievement in motion pictures or television. And then we have two others, the O-2, for individuals who will accompany the O-1 artist or athlete. To assist in a specific event or a particular performance. And last but not least is the visa for dependents the O-3. The spouse and the qualifying children of the O-1A and the O-2.
Gabbie Buenano: So you mentioned before this is an alternative to the H-1B visa. What are the benefits that the O-1A visa can provide?
Giselle Carson: In an immigration world where the cap-subject H-1B visas have been on a lottery for a number of years looking at an alternative like the O-1 becomes important and very strategic. The O-1 requires a higher level of skills than the H-1B, but it has also significant benefits. For example, it's not subject to the cap. We can file an O-1 at any point during the year. There is no set level of education required which can become really important. For example, we have done many O-1s for individuals in business and athletics that do not have a Bachelors degree or Masters or higher education. They have gained their extraordinary ability as a result of their years of experience in the field and their unique talent. So no cap, no educational level required.
There is also no minimum wage requirement for the O-1s. No LCA requirement, no labor certification requirement like we have for the H1-Bs. And we have also used the O-1, in fact, I have a consult later this afternoon relating to this, for physicians. Many physicians come to the United States using the J-1, which subjects them to the 2-year home residency requirement. They cannot move onto an H-1B unless they obtain a waiver or they have fulfilled the 2-year home residency requirement. But if they qualify, they can apply for an O-1A. So that's another benefit of the O-1A visa.
Gabbie Buenano: How long can a person be on an O-1A visa?
Giselle Carson: Initially, the O-1s can be granted for a 3-year maximum. The O-1s have related always to an event or an activity. So a maximum of initially 3 years to complete that event or activity. That event or activity can be a project, a lecture series, a tour, a business project, a competition, an academic year or another kind of related engagement. A group of related activities, for example, a variety of tournaments, can be considered an event.
The period of that event may include vacations, promotional appearances, activities that are incidental to that main event. This becomes important because after the initial 3 years, then we can request, 1-year extensions, to continue to participate or contribute to that initial event. But if we're able to show that the beneficiary is going to engage in a new event, then we can request another 3 years. And that becomes very, very useful.
We have done served initial 3 years followed by multi-year new O-1s. The beneficiary had their initial 3 years and now we're arguing that there has been a break in the initial event. We're requesting another 3 years. We have used the regulation at 8 CFR 214.2032 defining an event as including multiple activities, but not limited to projects, conferences, conventions, lecture series, tours, exhibits, business projects and engagements to justify the 3 years.
We have also noted, that if the activities in the itinerary fall within the beneficiary's area of extraordinary ability, they generally will be considered a single event no matter the gap between the US engagements. I try to keep the gap between the US engagements as short as possible. There is also a USCIS policy memo clarifying guidance on the petition validity period from July 20th, 2010. We have also used that memo to support a new event with 3 years.
In summary, can apply for an initial 3 years with 1-year extensions unless you can justify or create a break between the main event and then support that the beneficiary will come for a new event. I typically consular process this new O-1 3 years. Which provides a clean break.
Gabbie Buenano: What are the general eligibility criteria for O1-A visas?
Giselle Carson: In general, you have to show that the beneficiary has sustained national or international acclaim. And it's important to say sustained. If it's someone that was at the top of their field many years ago but they have not been able to sustain that acclaim, you may not be able to an O-1.
They must be coming to the United States to continue to work in the area of the extraordinary ability. We see people who were very accomplished abroad in a particular field, but they want to come to the United States to do something else. Well, that would not qualify then necessary for an O-1.
We have to show that the beneficiary is at the very top of their field. In order to do that, we narrow the field as much as we can. For example, for a researcher, we're going to try to narrow the field of research as much as we can.
Gabbie Buenano: How can we establish that the beneficiary meets these evidentiary criteria?
Giselle Carson: The regulations provide for a list of evidence required to show that the beneficiary is at the top of their field. The first one is receipt of a major internationally recognized award such as the Nobel Prize. We haven't had the opportunity to work with one of these beneficiaries yet but I'm always keeping my doors open for that opportunity. We typically are looking at the other options beyond a Nobel Prize.
We have to select and prove at least three requirements. Those include national or international recognized prizes or awards, memberships in certain associations, published material about the beneficiary and his work or her work, original scientific, scholarly or business-related contributions to the field, authorship of scholarly articles, a high salary remuneration, participation on a panel or individually as they judge the work of others, and last but not least, employment in a critical or essential capacity for organizations of distinguished reputations. There are more words to these requirements that actually have meaning and impact and we'll talk about some of those as we continue our conversation.
Gabbie Buenano: That's a lot to provide USCIS. How do you know what USCIS is looking for in each evidence criteria?
Giselle Carson: That's a great question. As immigration attorneys, we look at the law, the regulations, the USCIS memos and more. Lately, I'm finding myself looking more at the AAO decisions and trying to figure out what are the trends.
So in today's podcast, we have selected three recent AAO decisions that provide guidance on how to establish three out of the seven evidentiary criteria we talked about. We're going to talk about how to establish original scientific and scholarly or business-related contributions; how to establish that the beneficiary is receiving or will receive a high salary remuneration. And finally, how to establish a critical or essential capacity.
Gabbie Buenano: So how can we establish original scientific, scholarly or business-related contribution?
Giselle Carson: Each one of those words - original, scientific, a scholarly or business-related contribution - has a role to play in how we prepare our O-1A petitions.
The petitioner must establish that the beneficiary has not only made original contributions, but the contributions are of major significance in the field, and a scientific, scholarly or business-related contribution. A way of doing that is to show that the beneficiary's contributions have been widely implemented or that they have influenced the field or otherwise have risen to a level of major significance.
The way we have used this original contribution and showed major contributions to the field is because we had been able to obtain letters from other institutions that have been using the researcher's research in their facility. In the case of the teacher, the curriculum that she implemented has been followed by other schools.
The beneficiary led the certification for the company and the process and systems that he implemented to obtain that certification has been followed by other organizations to achieve the same certification. Those are examples of how you can show that the contributions are original and have impacted or have been implemented into the field. We're doing this, showing through letters of other organizations that are using the beneficiary's contributions to further their organizational goals or to further the field.
Important to know with this particular criteria is the eligibility must be established at the time of the filing. In AAO matter of MKSP, November 2017 case, in this particular case, the petitioner submitted an unpublished research paper as evidence of an original scholarly contribution to the field. The director denied the petition saying that the criteria had not been met because the paper had not been published. It was an unpublished paper. The paper has not yet been subject to the intended journal's peer review process or disseminated to the field. Thus the record shows that the proposed theory has not influenced the field thus it will not count as a major original scientific contribution.
In the case of AAO matter of PSA - April 2018. The beneficiary had authored developed soccer training manuals. There were considered original contributions. The regulations also require that we show that they're major contributions that are scientific, scholarly or business-related contributions.
In this particular case, a petitioner also submitted letters from others in the field saying they had consistently utilized the beneficiary's manual and had achieved tremendous success in the growth and development of their young soccer players.
Gabbie Buenano: Now, you said before that we also are going to be talking about establishing high salary and remuneration. How can we establish that when here in the States, it's pretty well known that some of these researchers or teachers or athletes are being paid so much money?
Giselle Carson: Let me start by giving you some websites that are going to be useful to you to establish a high salary and remuneration. And they're also on our show notes. So there is bls.gov, careeronestop.org, and also the [UNCLEAR 21:49] Center, which I'm sure many of us use for our H1-B petitions. So those are websites that the government sites that in fact the USCIS also recommends that we use them in order to establish high salary and remuneration.
In fact, that was one of the arguments that one of the decisions that we're referencing mentions. In AAO matter PSA case that also covers the issue of remuneration. The petitioner said it's known in the industry that coaches receive a lot of commission income money. The director denied the petition and then the AAO said, well that's great, but you have to show us evidence, which you have not.
Now the sites that I just provided you are not going to show that commission income is high for coaches. To establish something like that you will probably have to go to a private surveyor or private industry or maybe get a letter from someone else, an expert that will support that.
In another AAO MKSP. Is it high enough to make it high salary remuneration for the purposes of extraordinary ability? And I've had very few clients that I've been able to argue that they're really at the top of the salary.
In fact, we have at least one client right now where we're using this criterion and we're using the government databases to show that the average in the industry and I'm just taking $100,000, our client is making $250,000 plus he gets a lot of other incentives and bonuses and stock options. So he's really way beyond the average in the field. We're using the government data to show this is the average and he's well beyond the average.
This matter of MKSP references also several decisions that deal with how to show remuneration and high salary. So if you are using this as one of your evidentiary criteria, I'd recommend that you read MKSP and the other cases that are referenced in that decision.
Gabbie Buenano: Now, for the last one, how do we establish that the beneficiary is in a critical or essential capacity?
Giselle Carson: Critical and essential capacity is one that we typically use. Critical and essential capacity, again, we are talking about people that are extraordinary in their fields, they are at the top of their field. In the matter of PSA 2018 case, the critical and essential capacity is literally two lines. The petitioner submitted letters showing that the beneficiary had been coaching at several prestigious soccer teams and clubs. And that beneficiary qualified.
Then in the matter of MKSP, again, letters were submitted that the beneficiary had served as a visiting professor of high energy and as an adjunct professor of physics. He was conducting high energy physics research and assisting the petitioner. The director felt that the statements alone were not enough to demonstrate that the beneficiary had been employed in a critical or essential capacity for the colleges.
So this even goes back to just a year ago, letters from employers, from private employers and from experts were typically enough and even notarized statements were typically enough. And now the RFEs about critical and essential capacity, we are seeing that just letters even from private employers on their letterheads are not enough, we have to show additional documentation that goes to support the statements on the letters.
In this particular case, MKSP, the AAO said, maybe they have played a critical role for their organization, but the evidence that was submitted did not differentiate the beneficiary from the college's other professors, and it was insufficient to establish that his specific role had contributed to those organizations in a way that was substantial to their success or standing.
As I was preparing for this podcast, I'm reading these decisions, I certainly make sure that in our case we clearly differentiate her role as an extraordinary teacher versus just a teacher that may not be completely at the top of their field.
I mentioned that we just received an RFE yesterday. It's an O-1, we use critical and essential capacity, this was an athlete that is at the top of his field, and RFE says, to assist in determining that the beneficiary has performed in a leading or critical role, the petitioner must specifically state which employment position and for which company the petitioner intends to qualify the beneficiary.
We submitted letters and supporting evidence from private employers establishing that there were distinguished organizations in the field, distinguished teams and that the athlete played a critical role and a key role in many of the accomplishments that the teams obtained. They go on to say, the letter should contain detailed and probative information that specifically addresses how the beneficiary's role for the organization or establishment is or was leading or critical. Details should include the specific tasks or accomplishments of the beneficiary as compared to others who are employing similar pursuits within the field of endeavor. The letters should include the name, address, and title of the writer.
From my perspective, we submitted that evidence. But we're going to revisit this and try to strategize and see how we can submit it in a different fashion so that the adjudicator will reconsider the evidence and hopefully give an approval.
Gabbie Buenano: There seems just a lot for just three of the seven or eight criteria that they allow us to choose from. How can the listeners learn more from what we just talked about?
Giselle Carson: Sure. It is really important to stay connected in the field of immigration these days, whether you're working in removal or business immigration or whatever so that we can continue to help each other. So please reach out to me. We'd love to connect with you on LinkedIn. You can also email me at email@example.com. I look forward to hearing from you. Please let us know if you enjoyed this podcast, what you would like to hear more about so that we can continue to share and learn with each other. And on that note, stay tuned for more educational podcasts. Talk to you soon.
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