Labor Unions Can Now Submit Negative O Visa Consultations Directly to USCIS

The U.S. Citizenship and Immigration Services (USCIS) recently announced a new measure to help prevent fraud in the O-1 or O-2 petition process. If a labor union issues a negative O visa consultation (i.e. A consultation that objects to the issuance of an O-1 or O-2 visa to a foreign national filing such a petition), the labor union can now send the consultation directly to the USCIS.

Background on Consultation Letters

The O-1 nonimmigrant visa category is reserved for those who have extraordinary ability in the sciences, arts, education, business, or athletics. The O-2 category is for support personnel of an O-1 artist or athlete. In filing an O-1 or O-2 petition, one generally must first obtain a consultation letter, also called an advisory opinion, from the appropriate labor organization, peer group, or management organization, stating whether or not the beneficiary is qualified for the O classification. Assuming an appropriate labor union exists, the letter must be included with the petition.

The new measure is designed to prevent a petitioner from fraudulently altering a negative advisory opinion to make it appear as if the organization is supporting the petition. If a group or labor union issues a negative consultation letter, they may now submit a copy of the letter directly to the USCIS.

Measure Likely to Have Limited Impact

This new measure is designed to target fraud, and is unlikely to impact the vast majority of O-1 and O-2 petitions. Although one is required to request a letter from the appropriate union when filing an O-1 or O-2 petition, these letters are not dispositive. It is not unusual to have an O-1 or O-2 petition include a letter from a labor union objecting to the petition’s approval, and still have the USCIS approve the case. This measure primarily should impact only those filed with truly fraudulent documents, or potentially those cases where an individual received a negative letter from one group, a positive letter from a different group, and only submits the positive letter.

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