On March 3, 2023, the U.S. Citizenship and Immigration Services (USCIS) issued new policy guidance, Evaluating Eligibility for O-1B Visa Category, which describes new updates made to the USCIS Policy Manual. The new USCIS guidance aims to clarify the adjudication of O-1B visas for nonimmigrant workers of extraordinary ability in the arts and nonimmigrant workers of extraordinary achievement in the motion picture or television industry. The new guidance is effective immediately and aims to improve predictable and transparent application of O-1B evidentiary requirements, as well as improve consistency and efficiency in USCIS decision-making. These updates were based on stakeholder comments in response to a request for public input made by USCIS on May 19, 2021.

O-1 Visa and Categorization Structure

Under the Immigration and Nationality Act, O-1 visa status is available to individuals of extraordinary ability in the sciences, business, education, arts, athletics, and motion picture or television industry. Eligibility for this visa classification must be proven through evidence of specific criteria, indicating that the individual (or beneficiary) is one of a small percentage of people who have risen to the top of a specific field of endeavor. The criteria are split among two categories depending on the specific field or industry at issue. The O-1A visa category corresponds to the sciences, education, business, and athletics, while the O-1B visa category corresponds to the arts and the motion picture or television industry. Both visa categories require extensive documentation indicating that the beneficiary’s achievements have been recognized in their field through extensive documentation. The O-1A and O-1B visa categories tend to be popular categories used by executives, scientists, physicians, artists, actors, musicians, fashion designers, film producers, directors, and other creative and television- or film-oriented occupations.

While USCIS has long provided a list of defined required O-1A and O-1B criteria for employers and employees to review and determine how best to demonstrate the beneficiary’s qualifications, the criteria listed in the O-1B category tend to be more subjective and less transparent, relative to those enumerated for the O-1A category. For example, some of the criteria for applying for an O-1B visa in the arts and motion picture or television industry include “a record of major commercial or critically acclaimed successes,” “significant recognition for achievements from organizations, critics, government agencies, and other recognized experts in the field in which the beneficiary is engaged,” and “evidence that beneficiary has performed, and will perform, services as a lead or starring participant in productions or events that have a distinguished reputation.” The USCIS Policy Manual contained minimal additional guidance on these definitions or how to successfully meet these abstract criteria.  

New O-1B Appendix Added to Policy Manual

In an effort to help alleviate inconsistencies in adjudication of petitions involving these criteria, USCIS has also introduced a new appendix, Satisfying the O-1B Evidentiary Requirements, into the Policy Manual, which provides concrete examples of evidence that “may, in some circumstances, satisfy the O-1B evidentiary requirements, as well as considerations that are relevant to evaluating the evidence.” The appendix provides new detail on how employers and employees can ensure that they meet the provided O-1B criteria, for example, by instructing officers to consider factors such as “favorable critical reception, high attendance levels, commercial success, or another indicator” when evaluating whether the beneficiary has performed, and will perform, “as a lead or starring participant in productions or events which have a distinguished reputation.” The more specific evidence standards should have the effect of reducing barriers for employers associated with applying for the O-1B visa, as well as improving timeliness of approvals, ensuring employees can be onboarded more quickly and have better transparency about adjudication of their visas without lengthy requests for evidence.

Conclusion

Employers should continue to be aware of changing and more nuanced guidance for the O-1B visa category, particularly as it may affect employees in creative and entertainment industries who are eligible for this visa classification as “individuals of extraordinary ability or achievement.” Please reach out to counsel should you have any additional questions on the possible impact of the new guidance, or with questions on potential eligibility of employees for the O-1B visa classification.