O-1 and EB-1 Visa Adjudication Following USCIS Change

O-1 and EB-1 Visa Adjudication Following USCIS Change

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

Both the O-1 nonimmigrant and EB-1 immigrant visa classifications remain important methods of sponsoring outstanding talent in the United States.

USCIS relies on a two-part analysis. Step one evaluates whether the petitioner has simply presented evidence satisfying the required criteria. In step two, the petitioner must persuade the government that the evidence actually demonstrates outstanding achievement as compared to relevant peers. Here are some of the 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. Critical but often overlooked, petitions should include a carefully defined field that is clearly articulated in a manner that is easily understood by a 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).
  • Testimonial letters must be specific. This is one of the most important pieces of evidence a petitioner can provide to support an individual’s contribution or achievement in their field. A testimonial letter must be carefully drafted, describing 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, Outstanding Researcher petitions should include a robust record of peer citation to the individual’s work and specific references to the individual and their work in trade publications and online media. These are a crucial methods 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 take 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.


Source: The National Law Review