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USCIS policy updates for O1B petitions, individuals with extraordinary ability in the arts or motion picture/TV industry

TV industry

On March 3, 2023, USCIS announced updates to its policy guidance on how O1B petitions will be evaluated. The O1B visa category is used by individuals with extraordinary ability in the arts, motion picture, or TV industries.

The principal change is the addition of an Appendix, titled “Satisfying the O-1B Evidentiary Requirements,” which provides more details on what kinds of evidence may be helpful in meeting each of the six evidentiary criteria for O-1B classification, at least three of which must be satisfied in order to qualify for the visa.

Below is a summary of the key takeaways:

1. Beneficiary has performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation.

  • Distinguished reputation of a production or event can be shown by favorable critical reception, high attendance levels, commercial success, publicity, endorsements, etc.
  • Key evidence of “leading or starring” role is the beneficiary’s role being featured or highlighted in public-facing publications, such as press releases, advertisements, critical reviews.
  • In some cases, favorable contractual terms commensurate to a “leading or starring” role could also support this criterion.
  • Unpublished testimonial or recommendation letters are insufficient to prove this criterion.

2. Beneficiary has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications.

  • Publications may include online sources, or a transcript of radio or video coverage.
  • The beneficiary’s achievements need not be the only subject of the material, if it either includes a discussion of the beneficiary, or discusses the beneficiary’s work or achievement and mentions the beneficiary in connection to the work.
  • Publications may include those authored by the beneficiary, even if one of multiple authors.
  • Both the content of the published material and the level of recognition of the media source are important considerations for meeting this criterion.

3. Beneficiary has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade, journals, publications, or testimonials.

  • “Lead role” means the beneficiary has a “principal role” in that organization.
  • “Starring role” means a “position of great prominence relative to others in the organization.”
  • “Critical role” means the beneficiary has contributed, or will contribute, in a way of “significant importance” to the organization or establishment’s activities. The role must be “integral or important” to the organization’s goals or activities in comparison to others.
  • Detailed expert letters with personal knowledge of the significance of the beneficiary’s role can be “particularly helpful” in satisfying this criterion.
  • Distinguished reputation of the organization may be shown by the scale of its customer base, longevity, or relevant media coverage.
  • The organization does not need to have directly employed the beneficiary.

4. Beneficiary’s record of major commercial or critically acclaimed successes, evidenced by title, rating, standing in the field, box office receipts, and other occupational achievements reported in trade journals, major newspapers, or other publications.

  • Publications reporting “Commercial success” should reflect figures such as ratings, receipts, sales, revenue, standing, or other achievements that represent major success in the field.
  • Publications reporting “critically acclaimed success” means public-facing praise or positive reviews in the field from professional art, television, or film critics.
  • The publications may be online or transcripts of radio or video coverage.
  • The publication does not have to be primarily about the beneficiary, but can be about a production in which the beneficiary performed, and applicants can show otherwise how the success of this production is in some way attributable to the beneficiary due to the beneficiary’s significant contributions.

5. Significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the beneficiary is engaged.

  • This criterion can be met by testimonial letters detailing the beneficiary’s achievements, and the significance is required for who is recognizing the achievements – an organization, critic, government agency, or other recognized expert in the field – rather than the nature of the achievements themselves.
  • Testimonial letters can come from an organization or governmental agency.
  • Testimonial letters can also come from a critic or recognized expert in the field.
  • The testimonial letter itself qualifies as significant recognition under the criterion when the significance of the recognizing organization, agency, or individual is established.

6. The applicant has commanded, or will command, a high salary or other substantial remuneration for services in relation to others in the field.

  • This criterion can be met by prospective salary for services, supported by job offer letters or contracts.
  • Bureau of Labor Statistics’ Occupational Employment and Wage Statistics may be helpful, but the comparison must be specifically matched. For example, broad descriptions that include multiple occupations or industries, such as “directors and producers,” which may include disparate categories such as film director and radio show producer, are not as helpful.
  • Websites that rely on user-reported data are not as reliable.
  • For applicants working outside the United States, the comparison should be made based on wage statistics of the locality where they are working, instead of simply converting the salary to U.S. dollars and comparing it to U.S. wage statistics.
  • Hourly wage data may be used, as long as the applicant provides documentation regarding the number of hours worked, which can include pay statements, personnel records, or letters from employers.

In sum, USCIS’s new updates to the policy manual with respect to evaluating O1B applications provide more detailed guidance and clarity on what types of evidence is favored and what level of documentation is required to satisfy each evidentiary criterion.

Simply meeting at least three out of the six criteria will not guarantee the O1B qualification, however – in a totality of evidence analysis, the application as a whole must still demonstrate that the individual has achieved “distinction” in their field, a high level of achievement “significantly above that ordinary encountered” in their fields such that they are properly considered renowned, leading, or well-known in their field.

Related posts:

Please click here to find out about how to prove the “major commercial or critically acclaimed success” criterion.

Please click here to find out what is the O-1B application process.

Please click here to find out how to meet the national/international O-1B criterion.

Please click here to find out what is distinction for the purposes of O-1B visa.

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