On January 28, USCIS issued new guidance concerning who is qualified for an O-1 (extraordinary ability) visa.. The guidance, in essence, expands the type of evidence that an O-1 candidate may use to show that he or she has extraordinary ability. The new guidance does this mainly by clarifying the meaning of the term "comparable evidence" as used in the O-1 regulations. See:

https://www.uscis.gov/policy-manual/volume-2-part-m-chapter-4#footnote-41

The O-1 regulations, read literally, appear overly narrow and restrictive in listing the types of evidence required to show extraordinary ability. This is especially true in the case of the O-1B visa for people with extraordinary ability in the arts ("artist visa") which will be the subject of this comment.

The regulations list six types of evidence for O-1B qualification. All applicants for this visa (except the very small percentage who have been nominated for or won an Emmy, Grammy or equivalent international award) must meet at least three out of the six requirements, which can be summarized as follows:

a) The O-1 applicant has performed, and will perform, in a "lead or starring" role for organizations that have a distinguished reputation.

b) The O-1 applicant has been the subject of articles or reviews in major publications about his or her achievements.

c) The O-1 applicant has performed, and will perform, in a lead, starring or critical role in distinguished productions or events.

d) The O-1 applicant has had major box office or ratings successes.

e) The O-1 applicant has testimonial letters from experts in his or her field.

f) The O-1 applicant has received, or will receive, a higher salary compared to other people in the same field.

These requirements appear to be skewed toward stage or concert hall performers who are very much in the public eye (there is a separate O-1B category for motion picture and TV performers which I will not go into here). These regulations would appear to discriminate against artists who work mainly behind the scenes, such as people in the fine arts, or fashion or graphic designers whose names are not well known but may work for well known organizations.

In these situations the concept of "comparable evidence" as defined in the O-1 regulations, becomes important. The above USCIS guidance describes the use of O-1 "comparable evidence" as follows:

"Petitioners should submit evidence outlined in the evidentiary criteria if the criteria readily apply to the beneficiary's occupation. However, if the petitioner establishes that a particular criterion is not readily applicable to the beneficiary's occupation, the petitioner may then use the comparable evidence provision..."

This raises the question of how to show that a particular one of the six O-1B standards listed above dose not apply to the particular O-1B case involved, but there is a "comparable" type of evidence which does,apply. To give the example of an unknown fashion designer working behind the scenes for a well known fashion company that I mentioned above, showing that he or she is or was a "lead or starring" participant in a ""production or event" that has a distinguished reputation may be difficult,

Working at one's desk day after day designing fashion products would not meet the literal definition of a "production or event". But if the fashion item or items that the person designs is then marketed or soled by a well known retailer and attracts favorable reviews or following among the public, the item or items in question could be considered as "comparable" to a distinguished "production" or "event".

Indeed, in my own O-1 practice, even before the release of the above USCIS guidance, I made a similar argument in a fashion designer O-1B case and received an approval, even though the person was at a relatively early career stage and virtually unknown to all but a select group of fashion experts.

In a forthcoming post, I will discuss some other ways in which people who work only behind the scenes and ar no known to the general public can gain O-1 AA or O-1b approval.


Roger Algase
Attorney at Law

Roger Algase is a New York-based attorney and graduate of Harvard College and Harvard Law School who has been representing O-1, H-1B, PERM Labor Certification and other skilled worker immigration clients for more than 25 years.