(a) Persons of extraordinary ability in the fields of science, education, business, or athletics.

(b) Persons of extraordinary ability in the field of arts.

(c) Persons of extraordinary achievement with respect to motion pictures and television.

The memo states, "O-1 aliens of extraordinary ability in the fields of science, education, business, and athletics have essentially the same definitions as [EB1] aliens of extraordinary ability in the fields of science, arts, education, business, or athletics." (But see the last two paragraphs below for some key differences; approval of an EA petition is by no means automatic for a person approved as O-1.)

The standard for individuals in the other O-1 categories is somewhat lower. The extraordinary ability standard applied to the arts means distinction. Distinction is a high level of achievement in the field of arts as shown by a degree of skill and recognition substantially above that ordinarily encountered, so that the person is renowned, leading, or well known in the field of endeavor. The extraordinary-achievement standard applied to the field of motion pictures and television means a very high level of accomplishment in the industry as shown by a degree of skill and recognition substantially above that ordinarily encountered, so that the person is recognized as outstanding, notable, or leading in the field. As these standards are lower than for the other fields listed above, approval of an O-1 petition in either of these categories is not indicative of eligibility for the EA classification.

The CSC memo provides a chart that compares the regulatory definition, statutory requirements, and required evidence of the EA classification and (a) in the above list for the O-1 classification. There are only minor differences between the requirements. With regard to statutory requirements, the EA category has an additional requirement that evidence be submitted to show that the admission of the alien will be a substantial, prospective benefit to the United States. Under the list of required evidence, two of the elements listed for EA classification are not listed for O-1. These are the two elements that pertain to the arts: (1) evidence of the display of the alien's work in the field at artistic exhibitions or showcases and (2) evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales. As the O-1 classification has separate categories relating to the arts and motion pictures and television, these two elements are not required for the first O-1 category for science, education, business, or athletics.

Again, an individual previously approved as an O-1 nonimmigrant in the fields of science, education, business, or athletics may be successful in petitioning for EA classification, but the individual also will have to show substantial, prospective benefit to the U.S. An individual cannot solely rely on the argument that a O-1 petition was approved. Each petition must stand on its own merit. It is very important for the EA petition to clearly show a benefit to the U.S. and demonstrate that the individual has risen to the very top of the field.

© The Law Office of Sheela Murthy, P.C.