What impact will the Biden/Harris administration have on the extraordinary ability visa/green card? What changes did the Trump administration make with regards to the O-1 visa and Eb-1A green card?

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The O-1A visa is for individuals with an extraordinary ability in the sciences, education, business, or athletics and is set aside for people who have risen to the top of their profession.  Additionally, these persons must be coming temporarily to the United States to continue work in their area of extraordinary ability. You can find more about the O-1A visa when you click here.

The O-1B visa is for foreign nationals (aliens) who have demonstrated extraordinary ability by sustained national or international acclaim in the arts or extraordinary achievement in motion picture or television industry.  Additionally, these persons must be coming temporarily to the United States to continue work in their area of extraordinary ability. You can find more about the O-1B visa when you click here. 

The EB-1A green card is for people who are recognized as being at the very top of their field and are coming to the US to continue work in that field. Please read more about the EB-1A visa when you click here.

O-1 Visa: Approval rates & RFEs

Please see below the USCIS Approval and Request for Evidence (“RFE”) statistics for O-1 visa applications that were filed in the U.S. between 2016-2020.

In 2016, the O-1 approval rate was 92.9% and RFE was issued in 22.6% cases.

In 2017, the O-1 approval rate was 94.1% and 7RFE was issued in 22% cases.

In 2018, the O-1 approval rate was 92.8% and RFE was issued in 22.9% of cases.

In 2019, the O-1 approval rate was 90.8% and RFE was issued in 26.4% cases.

In 2020, the O-1 approval rate was 89.4% and RFE was issued in 30.2% cases.

As we can see the approval rate from 2016 until 2020 went down by 3%, but the from 2016 until 2020, the RFE rate increased significantly. We think that the RFE rate may go down a bit with the new administration.

We did not find approval & RFE statistics for the EB-1A green card category on the USCIS website.

Presidential Proclamations related to Covid and Consular Processing & O-1 visas

The O-1 visa applicants are not mentioned inPresidential Proclamation 10014, which was a Presidential Proclamation suspending entry to the U.S. of aliens who present a risk to the U.S. labor market following the Corona virus outbreak (only H-1B, H-2B, certain J, and L visa applicants are listed in this proclamation).

However, because of the Covid-19 global pandemic, O-1 visa applicants who are currently outside the U.S. and need a new O-1 visa/need to renew their O-1 visa have been having hard time scheduling O-1 visa appointments at U.S. Consulates abroad.

For example, some Consulates in the Schengen area countries are still not even processing O-1 visa applications. Even at the Consulates that are processing O-1 visa applications, it is taking significant time for applicants to actually get an O-1 interview. Additionally, some Consulates in the Schengen area refusing to issue O-1 visas unless the O-1 visa applicant also qualifies for a National Interest Exception.

President Proclamations related to Covid & Eb-1A Green card

In April 2020 president Trump issued a proclamation that suspended the entry to the U.S. to EB-1A green card applicants who were:

  • Outside the U.S. on April 23, 2020,
  • Did not have an immigrant visa as of April 23, 2020,
  • Did not have an official travel document other than a visa that was valid on April 23, 2020 or issued on nay date thereafter that permits you to travel to the U.S.

Please note that the proclamation lists some exceptions such as for example:

  • It does not apply to you if you are applying for an immigrant visa as a physician, nurse, or other healthcare professional to perform medical research related to combat the spread of Covid-19

There are 2 ways how one can get an Eb-1A green card: (i) if the person is already in the U.S., he/she can file an Adjustment of Status petition with USCIS, (ii) if the person is outside the U.S., he/she can file an I-140 petition with USCIS and then apply for the green card at a U.S. Consulate abroad.

The proclamation above only affects people who are applying under the second option, meaning that they have already an I-140 petition approved and want to get an immigrant visa at a U.S. Consulate abroad. The proclamation is set to expire on December 31, 2020 (but can be extended).

The new administration has not yet expressed whether this proclamation will be extended and the current administration also has not yet indicated whether they will extend the proclamation past the December 31, 2020.

We think that because of the proclamation’s limited scope, the proclamation could potentially be terminated as it only impacts people who were outside the U.S. on the effective date and did not have a visa, but it’s hard to predict at this point.

USCIS officers have been applying the same level of scrutiny to both initial and extension O-1 applications.

In 2017, USCIS rescinded its previous guidance regarding deference to prior determinations of eligibility in the Adjudication of Petitions for Extension of Non-immigrant status. Prior to 2017, if the extension petition involved the same parties and the same underlying facts, USCIS deferred to the prior determination of eligibility. In 2017, this changed and USCIS emphasized that the burden of proof to establish that O-1 applicant continues to be eligible for the O-1 status lays on the petitioner.

If USCISC rescinds this Memorandum and the USCIS officers will be allowed to give deference to prior determinations of eligibility, we think that the RFE rate for O-1 petitions may go down.

Changes to USCIS Policy Manual regarding the O-1 visa classification

In September 2020, USCIS announced that it’s issuing a new policy guidance in the USCIS Policy manual to update and consolidate the O-1 visa classification. Please see our blog post on this new policy when you click here.

Some of the most important changes/additions were:

  • Allowing the O-1 visa applicants to submit a comparable evidence:  If the O-1 criteria are not readily available to O-1 applicant’s occupation, then the O-1 visa applicant can submit a comparable evidence and the O-1 visa applicant does not have to show how the criteria does not apply to his/her occupation before USCIS will look at the comparable evidence. While the Immigration Regulations directly state that O-1 visa applicant may submit a comparable evidence to establish eligibility criteria for the O-1 visa if the regular O-1 criteria do not apply to him/her, adding this specifically to the USCIS Policy Manual has been a positive change as the USCIS Policy Manual is used by USCIS officers when making decisions on cases.
  • “Totality of circumstances analysis”: The updated Policy Manual indicates that just because you submit documentation showing that 3 of the O-1A/O-1B criteria are met does not mean that you meet the evidentiary standard. The totality of circumstances analysis was not mentioned in the Policy manual before and is a significant change. This is a similar concept as there is in the Eb-1A green card concept (what is called “final merits determination”). When adjudicating the EB-1A green card petitions, “USCIS officers should evaluate the evidence together when considering the petition in its entirety to make a final merits determination of whether or not the petitioner, by a preponderance of the evidence, has demonstrated that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise, indicating that the alien is one of that small percentage who has risen to the very top of the field of endeavor.” The Adjudicator’s Field Manual. We are not sure at this point if the new administration will make any changes/updates to the USCIS Policy Manual. We think that if the totality of circumstances provision stays in the USCIS Policy Manual, that may be a reason for more RFE requests.

The new administration plans to increase the number of visas offered for permanent work visa (which includes the EB-1A category)

Currently, there are only 140,000 employment green card available for all employment based green cards applicants per year. The Eb-1 category that includes the EB-1A extraordinary ability applicants, EB-1B outstanding professors and researches, and EB-1C category that includes multinational executives and manager gets 28.6% percent of 140,000 visas per year.

President-elect Biden previously indicated that he will work with Congress to increase the number of visas awarded for the employment based immigration (but to also promote a mechanism to temporarily reduce the number of visas during times of high U.S. unemployment).

As it seems that the Congress will be divided during president-elect Biden’s presidency, it will most likely be extremely difficult to pass a bill that would raise the employment based green cards.

Additionally, given the current situation with Covid-19 and the high unemployment rate in the U.S., we don’t think that the new administration will be able and willing to immediately increase the employment based green cards.

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