USCIS Updates Guidance on Evidence for O1B Filings

On March 3, 2023, the United States Citizenship and Immigration Services (USCIS) released guidance clarifying how it evaluates evidence to determine eligibility for O1B nonimmigrants of extraordinary ability in the arts and of extraordinary achievement in the motion picture or television industry. This guidance provides clarity to O1B petitioners and beneficiaries regarding the weight that the USCIS gives to various types of evidence in general and guidance on types of comparable evidence for O1B petitions.

Background

Eligibility for O1B category nonimmigrants with extraordinary ability in the arts and nonimmigrants of extraordinary achievement in the motion picture and television industry has historically been subject to various interpretations. In the absence of clear guidance of the nature of the evidence that would be considered sufficient, petitioners were often uncertain of the relative strength of their filings. By adding detailed instructions to its Policy Manual, the USCIS provides a better roadmap for presenting stronger O1B petition filings.

Highlights of the New Policy

One of the most notable updates to the evaluation of evidence in support of an O1B petition as reflected in the USCIS Policy Manual is clarification of what constitutes “comparable evidence.” Specifically, the USCIS has clarified that “[a] petitioner is not required to show that all or a majority of the criteria do not readily apply to the beneficiary’s occupation before USCIS will accept comparable evidence.” This is a welcome change to the prior policy, which did not provide clear guidance regarding whether the petitioner had to justify submission of comparable evidence by first showing the inapplicability of the standard eligibility criteria.

Additionally, the USCIS has added a new appendix to Chapter 4 of the Policy Manual, which provides a detailed description of possible types of evidence to satisfy the required eligibility criteria. This guidance should allow petitioners to prepare well supported O1B petitions by following more precise instructions from the USCIS.

Finally, the USCIS provided more detailed guidance for O1B beneficiaries in motion picture and television and added cross-references to the new sections and the appendix.

Conclusion

The USCIS guidance regarding evaluation of evidence submitted in support of the O1B petitions provides petitioners, beneficiaries, and immigration law practitioners with a better understanding of how their cases will be evaluated by the USCIS. This should help to facilitate better supported filings of O1B petitions and minimize inconsistent decision-making by the USCIS.

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