Lin Walker 5/18/24 Lin Walker 5/18/24

Alternatives to the H-1B: O-1A Visa - Alternative Criterion 6 (Authorship of Scholarly Articles)

For those of you considering viable options to the H-1B cap (because you were not selected in this year’s lottery), I will be doing a deep-dive into the O-1A criteria over the next couple of weeks.

When determining whether someone is qualified for O-1A classification, I cannot emphasize enough how essential it is to read the regulations and the requirements in their totality.

What does this mean? Read the regulations and the requirements in their totality. This means literally reading each and every single word – do not summarize or abbreviate the criterion because this is where you get into trouble.

If you do not possess evidence of receipt of a major, internationally recognized award (on the level of a Nobel Prize), in your field of endeavor, you can still qualify for O-1A classification by providing documentary evidence in at least three (3) out of eight (8) alternative criterion, which we will address in the coming weeks.

It is important to note that the vast majority of O-1A recipients that I have worked with (more than 99%) do not have a major, internationally recognized award. These incredibly talented individuals qualify for O-1A classification because they are able to meet at least three of the alternative criterion.

O-1A Deep Dive - Alternative Criterion 6

The regulations state that the beneficiary of an O-1A petition may provide evidence of their “authorship of scholarly articles in the field, in professional journals, or other major media”. 8 CFR §214.2(o)(3)(iii)(B)(6).

Problem

What’s so difficult about this criterion? Why do so many people get it wrong? To satisfy this criterion, you must make a two part showing:

The beneficiary written scholarly articles; and
Those articles have been published in professional journals or other major media.

Pro Tips

First, it is critical to note that this criterion DOES NOT require the beneficiary to be the sole or first/principal author of the article. So long as the beneficiary is listed as an author or one of the authors, the first prong is satisfied.

Second, the article must be published in a relevant professional journal (for the specific or allied field) or major media, which can include conference proceedings, major newspapers, and even well-established websites with a large viewership. In order to establish that the publication meets this criterion, it is essential to provide media kit(s) or circulation/readership/viewership data, impact factor (for scientific or academic journals), acceptance rates (for scientific or academic journals, and rankings in the specific field (for scientific or academic journals).

Third, read the Regulations and USCIS Policy Manual, in particular, “Appendix: Satisfying the O-1A Evidentiary Requirements” carefully and ensure that you are providing documentary evidence that satisfies the entirety of the criterion, not just a summary of what you think it means (or worse, only what you have evidence to show).

Fourth, work with a qualified business immigration attorney who is experienced in representing, preparing and filing O-1A petitions. It is essential to understand the changing definitions, regulatory interpretations and adjudicative priorities of USCIS in order to present the strongest possible petition.

Lin Walker 5/11/24 Lin Walker 5/11/24

Alternatives to the H-1B: O-1A Visa - Alternative Criterion 5 (Original Contributions of Major Significance)

For those of you considering viable options to the H-1B cap (because you were not selected in this year’s lottery), I will be doing a deep-dive into the O-1A criteria over the next couple of weeks.

When determining whether someone is qualified for O-1A classification, I cannot emphasize enough how essential it is to read the regulations and the requirements in their totality.

O-1A Deep Dive - Alternative Criterion 5

The regulations state that the beneficiary of an O-1A petition may provide evidence of their “original scientific, scholarly, or business-related contributions of major significance in the field”. 8 CFR §214.2(o)(3)(iii)(B)(5).

Problem

What’s so difficult about this criterion? Why do so many people get it wrong? To satisfy this criterion, you must make a two part showing:

The beneficiary has made original contributions; and
Those contributions are of major significance to their field.

Although many O-1As can meet this criterion, it takes strategic planning and organization because many different types of documentation serve as the “ingredients” to show original contributions of major significance.

Pro Tips

First, a beneficiary must show that they have made original contributions. An original contribution, which can include but is not limited to: establishing a cause for a certain phenomenon; developing a new technology, tool, process or method to investigate a phenomenon or resolve an important issue in society; creating a new method to identify and combat fraud and/or cybersecurity issues; and developing a new model to investigate disease or illnesses.

USCIS will consider a contribution to be original if it resulted in obtaining grants/funding, publishing articles, or receiving a patent. Note, however, that evidence of the a patent, alone, is not enough.

Second, the beneficiary must establish that the original contribution is of major significance to the field. USCIS will consider an original contribution to have major significance if: it has received significant attention from others in the field; if publications based on the contribution received significant citations; and/or if it has been licensed or utilized in a specific product.

What evidence can be used to satisfy this criterion? Evidence may include but is not limited to: testimonial letters from experts in the field discussing the originality and significance of the beneficiary’s work (more evidentiary weight is given to independent expert letters); citations reports and/or citations analyses showing that the beneficiary’s work has received numerous citations from recognized organizations/experts in the field; patents that have been licensed; or evidence of the commercial application/use of the contribution.

Lin Walker 5/4/24 Lin Walker 5/4/24

Alternatives to the H-1B: O-1A Visa - Alternative Criterion 4 (Judge of the Work of Others)

For those of you considering viable options to the H-1B cap (because you were not selected in this year’s lottery), I will be doing a deep-dive into the O-1A criteria over the next couple of weeks.

When determining whether someone is qualified for O-1A classification, I cannot emphasize enough how essential it is to read the regulations and the requirements in their totality.

O-1A Deep Dive - Alternative Criterion 4

The regulations state that the beneficiary of an O-1A petition may provide evidence of their “participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought”. 8 CFR §214.2(o)(3)(iii)(B)(4).

Problem

What’s so difficult about this criterion? Why do so many people get it wrong? To satisfy this criterion, you must make a two part showing:

The beneficiary has served, either individually or as part of a group, as a judge of the work of other individuals AND
The work being judged is in the same or related field of specialization/endeavor.

Pro Tips

First, let’s cover what USCIS does not accept as satisfying this criterion. I have never seen USCIS accept service as the leader of a high school science club, mentoring of high school students, judging an elementary or high school writing or essay contest, or judging high school students as satisfying this criterion. While such work is commendable, in order to satisfy this criterion, the work being judged must be produced by individuals at a professional level.

Second, an invitation to judge by itself is not sufficient. The beneficiary must actually participate in the judging of the work of others.

Third, the work being judged must be in the O-1A beneficiary’s field of endeavor or a related field. If the beneficiary is applying for an O-1A as biomedical engineer, and participating as a judge for a food competition, such work would not satisfy this criterion.

So, what would work? Evidence may include but is not limited to: serving as a review of manuscripts, abstracts or articles submitted for presentation at scholarly conferences or publication in scholarly journals; serving as a member of a doctoral dissertation committee; serving as a reviewer for a government research program to determine the allocation of grants or funds; and/or serving as a member of the editorial board of a journal or publication.

Fourth, read the Regulations and USCIS Policy Manual, in particular, “Appendix: Satisfying the O-1A Evidentiary Requirements” carefully and ensure that you are providing documentary evidence that satisfies the entirety of the criterion, not just a summary of what you think it means (or worse, only what you have evidence to show).

Fifth, work with a qualified business immigration attorney who is experienced in representing, preparing and filing O-1A petitions. It is essential to understand the changing definitions, regulatory interpretations and adjudicative priorities of USCIS in order to present the strongest possible petition.

Lin Walker 4/27/24 Lin Walker 4/27/24

Alternatives to the H-1B: O-1A Visa - Alternative Criterion 3 (Published Materials About You & Your Work)

For those of you considering viable options to the H-1B cap (because you were not selected in this year’s lottery), I will be doing a deep-dive into the O-1A criteria over the next couple of weeks.

When determining whether someone is qualified for O-1A classification, I cannot emphasize enough how essential it is to read the regulations and the requirements in their totality.

O-1A Deep Dive - Alternative Criterion 3

The regulations state that the beneficiary of an O-1A petition may provide evidence of the “published material in professional or major trade publications or major media about the [Beneficiary], relating to [their] work in the field for which classification is sought”. 8 CFR §214.2(o)(3)(iii)(B)(3).

Problem

What’s so difficult about this criterion? Why do so many people get it wrong? To satisfy this criterion, you must make a two part showing:

There are published materials WRITTEN ABOUT the beneficiary and their achievements AND
That material is published in major newspapers, trade journals, magazines or other publications.

Pro Tips

First, let’s cover what USCIS does not accept as satisfying this criterion. Social media posts such as those appearing on LinkedIn, X, Facebook, Threads, and Instagram do not count as major media. Photos in tabloids or links to videos appearing online do not count. Citations to a beneficiary’s published articles also do not satisfy this criterion (although such evidence can be used to satisfy another criterion which will be discussed in the coming days).

However, if the beneficiary was interviewed for a major broadcast network or related media outlet (which can include major podcasts) and transcripts are provided, such evidence is usually satisfactory. It is important to remember that the article must mention the beneficiary and discuss their recognition, achievement(s) or work in the field.

Second, in addition to providing a printed copy of the article (which must be in English or accompanied by a certified English translation) that shows the name and date of the publication, you must include media kit(s) or circulation/readership data to establish that the media qualifies as major media. Yes, there are adjudicators who will issue an RFE claiming that they cannot determine whether The Wall Street Journal or The New York Times qualifies as “major media” without media kits.

Lin Walker 4/20/24 Lin Walker 4/20/24

Alternatives to the H-1B: O-1A Visa - Alternative Criterion 2 (Memberships)

For those of you considering viable options to the H-1B cap (because you were not selected in this year’s lottery), I will be doing a deep-dive into the O-1A criteria over the next couple of weeks.

When determining whether someone is qualified for O-1A classification, I cannot emphasize enough how essential it is to read the regulations and the requirements in their totality.

O-1A Deep Dive - Alternative Criterion 2

The regulations state that the beneficiary of an O-1A petition may provide evidence of the “membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields”. 8 CFR §214.2(o)(3)(iii)(B)(2).

Problem

What’s so difficult about this criterion? Why do so many people get it wrong? To satisfy this criterion, you must make a three part showing:

You must be a member of an organization in the field of endeavor;
Outstanding achievement is a prerequisite for membership in that organization; and
Your achievements have been judged as outstanding by nationally or internationally recognized experts in their field.

Pro Tips

First, let’s cover what USCIS does not accept as satisfying this criterion: memberships based solely on a fee or subscription to a publication/service; membership based solely on experience in the field; and membership that is required for employment (such as union memberships). In my experience, being a member of a board of directors does not satisfy this criterion.

Second, to meet this criterion, you must show that your achievements or contributions to the field have been judged or otherwise recognized as outstanding. This requires documentation about the organization, the different levels of membership (if applicable), the criteria for membership, and evidence that your specific level of membership is one that requires outstanding achievement.

In my experience, most organizations do not meet this criterion, however, there are more organizations in the science and engineering fields that may qualify than there are in the business and education fields. According to USCIS’ Policy Manual, some memberships that may qualify include being a Fellow of IEEE or Fellow of AAAI. I’ve also had clients experience success with other organization memberships as well, and the key to success is providing the documentation showing that outstanding achievement is required.

Lin Walker 4/13/24 Lin Walker 4/13/24

Alternatives to the H-1B: O-1A Visa - Alternative Criterion 1 (Lesser Known Awards)

For those of you considering viable options to the H-1B cap (because you were not selected in this year’s lottery), I will be doing a deep-dive into the O-1A criteria over the next couple of weeks.

When determining whether someone is qualified for O-1A classification, I cannot emphasize enough how essential it is to read the regulations and the requirements in their totality.

O-1A Deep Dive - Alternative Criterion 1

The regulations state that the beneficiary of an O-1A petition may provide evidence of the “receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor”. 8 CFR §214.2(o)(3)(iii)(B)(1).

Problem

What’s so difficult about this criterion? Why do so many people get it wrong?

You must have received awards or prizes for excellence in your field of endeavor. A nomination for an award is not enough.
The award or prize must be recognized either nationally (in one specific country) or internationally (at least two countries).

Pro Tips

First, let’s cover what USCIS DOES NOT accept as satisfying this criterion: academic scholarships, poster awards, travel awards, and employment based awards (e.g. employee of the month/year). Keep in mind that patents and trademarks are not considered awards. In addition, awards/prizes granted solely for payment of an entry fee, obviously do not count.

Second, USCIS will consider certain grants/funding awards, doctoral dissertation awards, and awards and prizes received in recognition for excellence in the field of endeavor that are based on a competitive selection process. That is, if you are seeking to satisfy this criterion, you must show:

The reputation of the organization granting the award/prize;
Evidence regarding the significance of the award/prize such as media materials;
The eligibility and selection criteria for the award/prize; and
The number of recipients for the award/prize.

One such dissertation award that was previously recognized for a client of mine was the SPEC Kaivalya Dixit Distinguished Dissertation Award. According to the SPEC Research Group’s website, the award “aims to recognize outstanding doctoral dissertations in the field of computer benchmarking, performance evaluation, and experimental system analysis in general.” (https://research.spec.org/awards)

Keep in mind if eligibility for the award/prize is limited to the employees of a specific company or students of a specific school, such award/prize will most likely not meet this criterion. For example, if a dissertation award is only open to students of a particular university, such award will not meet this criterion.

Lin Walker 4/6/24 Lin Walker 4/6/24

Alternatives to the H-1B: O-1A Visa

For those of you considering viable options to the H-1B cap (because you were not selected in this year’s lottery), I will be doing a deep-dive into the O-1A criteria over the next couple of weeks.

When determining whether someone is qualified for O-1A classification, I cannot emphasize enough how essential it is to read the regulations and the requirements in their totality.

What does this mean? First, read the regulations and the requirements in their totality. This means literally reading each and every single word – do not summarize or abbreviate the criterion because this is where you get into trouble.

Second, remove your ego from the assessment. This means you must look at your evidence objectively and see things with an outsider’s perspective. This is particularly true with the first criterion: Major Awards.

A lot of prospective O-1A beneficiaries waste substantial resources (time, money and labor) trying to convince immigration attorneys that they qualify for O-1A classification with evidence that clearly does not meet the criterion, sometimes based on truly bad advice they have read online or received from individuals who are not immigration attorneys.

O-1A Deep Dive - Criterion 1

The regulations state that the beneficiary of an O-1A petition may provide evidence of the “receipt of a major, internationally recognized award, such as the Nobel Prize”. 8 CFR §214.2(o)(3)(iii)(A).

Problem

Satisfying this one criterion is sufficient to establish eligibility for O-1A classification. But let’s be honest–the vast majority of O-1A beneficiaries (and people in general) cannot satisfy this criterion.

What’s so difficult about this criterion? Why do so many people get it wrong?

First, for major, internationally recognized awards, it is not enough to be nominated or make it to the final round of panelists. You must receive the award.

Second, the award must be a major, internationally recognized award in the field, meaning it must satisfy three elements.

It must be an award or prize.
It must be internationally recognized. This means that the award is recognized the world over, not just in one country.
It must be in your field of endeavor.

Pro Tips

First, read the Regulations and USCIS Policy Manual, in particular, “Appendix: Satisfying the O-1A Evidentiary Requirements” carefully and ensure that you are providing documentary evidence that satisfies the entirety of the criterion, not just a summary of what you think it means (or worse, only what you have evidence to show).

Second, include relevant evidence to this specific criterion. Do not include evidence such as academic scholarships, research grants/funding, poster/presentation awards, travel awards, academic awards (regardless of age or institution), employment based awards (e.g. employee of the month/year), memberships in associations (this is its own criterion) and age-related awards (e.g., 30 under 30).

There are very few awards that will meet this criterion, some of which may include, in addition to a Nobel Prize: the Fields Medal (mathematics); Turing Award (computer science); and IEEE Medal of Honor (electrical engineering)

Third, work with a qualified business immigration attorney who is experienced in representing, preparing and filing O-1A petitions. It is essential to understand the changing definitions, regulatory interpretations and adjudicative priorities of USCIS in order to present the strongest possible petition.

Lin Walker 3/31/24 Lin Walker 3/31/24

Alternatives to the H-1B: O-1B Visa

For those of you considering viable options to the H-1B cap (because you don’t want to put all your precious eggs in the same broken basket), I will be doing a deep-dive into the O-1B criteria over the next couple of weeks.

When determining whether someone is qualified for O-1B classification, I cannot emphasize enough how essential it is to read the regulations and the requirements in their totality.

What does this mean? Literally read each and every single word – do not summarize or abbreviate the criterion because this is where you get into trouble.

O-1B Deep Dive - Criterion 6

The criterion at 8 CFR §214.2(o)(3)(iv)(B)(6) requires evidence that the artist “has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence”.

Problem

What’s so difficult about this criterion? Why do so many people get it wrong? To satisfy this criterion, you must make a two-part showing:

The artist has commanded (in the past) a high salary or other substantial remuneration for services in relation to others, OR
The artist will command (in the future) a high salary or other substantial remuneration for service in relation to others.

Pro Tips

In my humble opinion, this is one of the strongest and most straight-forward criterion for O-1B classification because it is wholly independent. If an artist is able to meet this criterion, I always include evidence of it as part of the O-1B filing.

First, read the Regulations and USCIS Policy Manual, in particular, “Appendix: Satisfying the O-1B Evidentiary Requirements” carefully and ensure that you are providing documentary evidence that satisfies the entirety of the criterion, not just a summary of what you think it means (or worse, only what you have evidence to show).

Second, there are several forms of evidence that can be submitted, including but not limited to: executed contracts, tax filings and forms (such as the W-2, PAYG (Australia) or T2 (Canada), paystubs, invoices and proof of payment such as cancelled checks or wire transfers into a bank account owned and controlled by the artist.

Third, it is important to keep in mind that many artists do not work the standard 8 hour day/40 hours per week because their work is project-based. In scenarios where artists do work long hours a day, such as on a film set, such work is limited to a couple of weeks or months out of a year. So, when evaluating high remuneration or salary, it is essential to determine whether the artist is paid per hour, receives a daily rate (which may still not be equivalent to an 8 hour day), or is paid per performance or performance. In such cases, it may still be useful to assess the artist’s salary or remuneration on an hourly basis if the artist can provide documentation of the hours they worked.

Fourth, whether an artist is earning a high salary or other remuneration requires a comparison by geography and their peers. I have found that a very useful tool is the wage data provided by the DOL’s Foreign Labor Certification Data Center. In order to satisfy the high salary or other remuneration, the hourly or annual salary must exceed the Level 4 wage for the occupational classification most closely related to the artist’s field of endeavor in the geographic location where all services have been performed or will be performed.

Fifth, work with a qualified business immigration attorney who is experienced in representing, preparing and filing O-1B petitions for artists. It is essential to understand the changing definitions, regulatory interpretations and adjudicative priorities of USCIS in order to present the strongest possible petition.

Lin Walker 3/24/24 Lin Walker 3/24/24

Alternatives to the H-1B: O-1B Visa

When determining whether someone is qualified for O-1B classification, I cannot emphasize enough how essential it is to read the regulations and the requirements in their totality.

What does this mean? Literally read each and every single word – do not summarize or abbreviate the criterion because this is where you get into trouble.

O-1B Deep Dive - Criterion 5

The criterion at 8 CFR §214.2(o)(3)(iv)(B)(5) requires evidence that the artist “has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged. Such testimonials must be in a form which clearly indicates the author's authority, expertise, and knowledge of the alien's achievements.”

Problem

What’s so difficult about this criterion? Why do so many people get it wrong? To satisfy this criterion, you must make a three-part showing:

The artist has received significant recognition for their achievements;
Such recognition must be from organizations, critics, governmental agencies or other recognized experts in the specific field of endeavor; and
The documentary evidence submitted must clearly establish the organization, critic, governmental agency or expert’s authority, expertise, and knowledge of the artist’s achievements.

What exactly does USCIS mean with regard to “significant recognition for achievements”? According to the USCIS Policy Manual, “the evidence must establish the beneficiary has received significant recognition for one or more achievements from an organization, critic, government agency, or other recognized expert in the field. The word significant in this criterion modifies recognition rather than achievements. Accordingly, although the beneficiary must have one or more achievements, the significance of the recognition is based on who is recognizing the achievements.”

Pro Tips

Second, many people think they can or should file an O-1B petition with 10+ testimonial letters and that this will somehow make up for the weakness in the documentary evidence submitted to satisfy other criteria. Nothing could be further from the truth–this is the equivalent of ordering a sandwich and receiving a roll smeared with copious amounts of mayonnaise or ketchup or any other condiment and nothing else. Yes, it’s still edible, but is it an “extraordinary” sandwich?

In my experience, filing an O-1B petition with so many testimonial letters is a red flag to the adjudicating officer. I usually recommend 5-7 testimonials, with at least half being issued by independent experts in the field.

Third, care must be taken to identify the experts. How many years of experience do they have in the field? Have they all worked with, taught, or supervised the artist? Or worse, are they related to the artist (nepotism doesn’t work for O-1B petitions). What are their qualifications showing that they are an expert in the field? How do they know the artist? What can they confirm about the artist’s achievements? These are all essential questions to answer before securing a testimonial letter.

Fourth, work with a qualified business immigration attorney who is experienced in representing, preparing and filing O-1B petitions for artists. It is essential to understand the changing definitions, regulatory interpretations and adjudicative priorities of USCIS in order to present the strongest possible petition.

Lin Walker 3/17/24 Lin Walker 3/17/24

Alternatives to the H-1B: O-1B Visa

When determining whether someone is qualified for O-1B classification, I cannot emphasize enough how essential it is to read the regulations and the requirements in their totality.

What does this mean? Literally read each and every single word – do not summarize or abbreviate the criterion because this is where you get into trouble.

O-1B Deep Dive - Criterion 4

The criterion at 8 CFR §214.2(o)(3)(iv)(B)(4) requires evidence that the artist “has a record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications.”

Problem

What’s so difficult about this criterion? Why do so many people get it wrong? To satisfy this criterion, you must make a three-part showing:

The artist has a record of major commercially acclaimed successes, OR
The artist has a record of critically acclaimed successes, AND
These successes are documented by ratings, box office receipts, sales or revenues generated by the artist, standing or ranking in the field, or other occupational achievements as reported in major media.

First, let’s cover what USCIS does not accept as satisfying this criterion. With very few exceptions, views, likes or comments on social media (LinkedIn, X, Facebook, Threads, and Instagram) do not count.

Second, what does USCIS accept? When looking to satisfy the “record of major critically acclaimed success” component, the evidence is more limited. There must be “public-facing praise or positive reviews in the relevant field, such as from professional art, television or film critics” and such reviews must appear in major media. When looking to satisfy the “record of major commercial successes”, the evidence can be more diverse.

Pro Tips

Second, include relevant evidence to this specific criterion. What does that mean? The evidence may include articles in newspapers, trade journals, publications, or other major media that are about the artist and their work or their accomplishments that have received praise or noteworthy recognition, or show commercial success such as sold out performances or rankings as #1 or in the top 10.

For example, if the artist is a musician, the evidence may include record sales, music recording certifications (platinum, gold, diamond), ranking/rating on popular music charts, sold out performances/tours, and royalty payments.

Third, work with a qualified business immigration attorney who is experienced in representing, preparing and filing O-1B petitions for artists. It is essential to understand the changing definitions, regulatory interpretations and adjudicative priorities of USCIS in order to present the strongest possible petition.

Lin Walker 3/10/24 Lin Walker 3/10/24

Alternatives to the H-1B: O-1B Visa

When determining whether someone is qualified for O-1B classification, I cannot emphasize enough how essential it is to read the regulations and the requirements in their totality.

What does this mean? Literally read each and every single word – do not summarize or abbreviate the criterion because this is where you get into trouble.

O-1B Deep Dive - Criterion 3

One of the criterion for the O-1B that, in my humble opinion, causes the most confusion is evidence that the foreign national “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.” 8 CFR §214.2(o)(3)(iv)(B)(3)

Problem

What’s so difficult about this criterion? Why do so many people get it wrong? To satisfy this criterion, you must make a three-part showing:

The artist has performed (in the past) services in a lead, starring or critical role AND
The artist will perform (in the future) services in a lead, starring or critical role AND
The artist’s performance in a lead, starring or critical role was and will be for organizations and establishments that have a distinguished reputation.

First, many petitions include evidence of past performances OR future performances in a lead, starring, or critical role, AND NOT BOTH. To qualify the artist’s past performances AND future performances must be in a lead, starring or critical role.

Second, many petitions do not establish that the organizations and establishments have a distinguished reputation.

Third, many petitions use the terms “lead”, “starring”, and “critical” interchangeably, when these mean different things. For USCIS, a lead role means a principal role in the organization or establishment, while a starring role means a position of great prominence relative to others in the organization or establishment. Critical role means that the artist has contributed or will contribute in significant or integral ways to the organization or establishment’s goals or activities.

Pro Tips

Second, include relevant evidence to this specific criterion. What does that mean? The evidence may include articles in newspapers, trade journals, publications, or testimonials that confirm the artist’s leading, starring or critical roles.

Note that these testimonial letters should come from the artist’s employers or other people with first-hand knowledge of the significance of the artist’s. In defining the artist’s role USCIS takes into account more than just the artist’s title, and also looks at the artist’s specific duties and contributions to the organization/establishment’s goals or activities.

Lin Walker 3/3/24 Lin Walker 3/3/24

Alternatives to the H-1B: O-1B Visa

When determining whether someone is qualified for O-1B classification, I cannot emphasize enough how essential it is to read the regulations and the requirements in their totality.

What does this mean? Literally read each and every single word – do not summarize or abbreviate the criterion because this is where you get into trouble.

O-1B Deep Dive - Criterion 2

The criterion at 8 CFR §214.2(o)(3)(iv)(B)(2) requires evidence that the foreign national “has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications.”

Problem

What’s so difficult about this criterion? Why do so many people get it wrong? To satisfy this criterion, you must make a three-part showing:

There is published materials WRITTEN BY the artist and their achievements OR
There is published materials WRITTEN ABOUT the artist and recognizes their achievements AND
That material is published in major newspapers, trade journals, magazines or other publications.

First, let’s cover what USCIS DOES NOT accept as satisfying this criterion. With very few exceptions, social media posts such as those appearing on LinkedIn, X, Facebook, Threads, and Instagram do not count as major media. Photos in tabloids or links to videos appearing on online do not count

However, if the artist was interviewed for a major broadcast network or related media outlet (which can include major podcasts) and transcripts are provided, such evidence is usually satisfactory.

Second, in addition to providing a printed copy of the article (which must be in English or accompanied by a certified English translation) that shows the name and date of the media, you must include media kit(s) or circulation/readership data to establish that the media qualifies as major media.

Pro Tips

Second, include relevant evidence to this specific criterion. What does that mean? The evidence may include critical review(s) or other published material(s) in a major newspaper(s), trade journal(s), magazine(s), or other publication(s) (which may include online publications or a transcript of radio or video coverage) by or about the artist. The documentation must also include the media kit or readership/circulation data for each source.

Keep in mind that you must curate and thoroughly review all evidence is presented to USCIS about the artist. Care should be taken not to include documentation may be offensive (such as nudity or profanity) or early media articles that referred to the artist years ago as “up and coming”, “a rising star”, “future star” or “one to watch in the future” as USCIS will interpret these documents as showing that the artist is not NOW extraordinary but may become extraordinary in the future. If such documentation is included, USCIS will most likely deny the O-1B petition and tell you to refile in the future, once the artist is already a star.

Lin Walker 2/25/24 Lin Walker 2/25/24

Alternatives to the H-1B: O-1B Visa

When determining whether someone is qualified for O-1B classification, I cannot emphasize enough how essential it is to read the regulations and the requirements in their totality.

What does this mean? Literally read each and every single word – do not summarize or abbreviate the criterion because this is where you get into trouble.

O-1B Deep Dive - Criterion 1

In my humble opinion, one of the criterion for the O-1B that causes the most confusion is evidence that the foreign national “has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications contracts, or endorsements.” 8 CFR §214.2(o)(3)(iv)(B)

Problem

What’s so difficult about this criterion? Why do so many people get it wrong? To satisfy this criterion, you must make a three-part showing:

The artist has performed (in the past) services as a lead or starring participant AND
The artist will perform (in the future) services as a lead or starring participant AND
The artist’s role as a lead or starring participant was and will be in productions or events that have a distinguished reputation.

First, many petitions include evidence of past performances OR future performances in a lead or starring role, and not both. To qualify the artist’s past performances AND future performances must be in a lead or starring role.

Second, many petitions do not establish that the productions or events have a distinguished reputation.

Third, many petitions use the terms “lead” and “starring” interchangeably, when these mean two different things. For USCIS, a lead role means a principal role in the event or production, while a starring role means a position of great prominence relative to others in the event or production.

Pro Tips

Second, include relevant evidence to this specific criterion. What does that mean? The evidence may include critical reviews, advertisements, publicity releases, publications, contracts, or endorsements. If this independent evidence is not sufficient to identify how the artist’s role was leading or starring, you can supplement with endorsement (letters) from the artist’s employer(s) to confirm the artist’s leading or starring role.

Lin Walker 2/19/24 Lin Walker 2/19/24

DHS’ 2022 Yearbook of Immigration Statistics

Each year, the Office of Homeland Security Statistics Resources publishes statistics on diverse immigration data, which includes its Yearbook of Immigration Statistics.

According to DHS, “The 2022 Yearbook of Immigration Statistics (2022 Yearbook)is a compendium of tables that provide data on foreign nationals who are granted lawful permanent residence (i.e., immigrants who receive a “green card”), admitted as temporary nonimmigrants, granted asylum or refugee status, or are naturalized. The Yearbook also presents data on immigration enforcement actions, including apprehensions and arrests, removals, and returns.”

One of the data points that I found most interesting in the 2022 Yearbook is the number and class of nonimmigrant admissions (as recorded by the I-94 system). For example, DHS admitted more than 96 million nonimmigrants in 2022, and while this may seem like a lot, it’s still significantly fewer admissions than our pre-COVID numbers wherein 2018 and 2019, DHS admitted more than 186 million nonimmigrants.

So, who did DHS admitted in 2022? How did these admissions compare to pre-COVID admissions in 2019? Below is an excerpt of some of the visa classifications that I work with the most:

And from which regions did these nonimmigrants come?

Which countries had the most nonimmigrants visit the United States in 2022? Below is a list of the top 10 countries.

Mexico - 13,644,287
Canada - 6,903,580
United Kingdom - 3,090,439
India - 1,793,061
France - 1,469,979
Germany - 1,404,348
Colombia - 1,124,998
Brazil - 1,063,680
Spain - 885,632
Italy - 865,392

Runner-ups include: Argentina, Australia, Chile, South Korea, and the Netherlands, who each had more than 500,000 foreign nationals visit the United States in 2022.

For more insightful data, see DHS’ 2022 Yearbook!

Lin Walker 2/10/24 Lin Walker 2/10/24

New USCIS Fees on April 1, 2024

On January 31st, USCIS published a new fee schedule, which will take effect on April 1, 2024, and significantly impact most employment-based petitions. Most notably, the new fee schedule will add a mandatory Asylum Program Fee to every Form I-129, Petition for Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien Worker, filed by for-profit employers.

What is the Asylum Program Fee?

It is an additional fee that USCIS is charging to U.S. employers in order to “fund part of the cost of administering the entire asylum process” which are estimated by the Agency to cost over $400 million per year. (89 FR 6208).

USCIS “determined that the Asylum Program Fee is an effective way to shift some costs to…petitioners who have more ability to pay”--in other words, U.S. employers who wish to sponsor foreign nationals for temporary (I-129) or permanent (I-140) employment in the United States. (89 FR 6208).

In other words, because Congress cannot figure out how to effectively fund the asylum process so that USCIS can properly administer and manage it, which has resulted in a backlog of more than 3 million cases, USCIS has in turn decided to tax U.S. employers in order to fund the asylum program.

What does this mean for U.S. employers?

Below is a chart of the new USCIS filing fees, by process, that must be paid beginning April 1, 2024.

If Employers have H, L, O, E, TN or I-140 petitions that can be filed before April 1, 2024, then they should do so in order to save hundreds, if not thousands of dollars.

Any cases that will be filed with USCIS on or after April 1, 2024, must include the new filing fees. Failure to file with the proper filing fees will result in the case being rejected.

Employers should take particular care in ensuring the proper filing fees with this year’s H-1B cap petitions, which must be filed after April 1, 2024. USCIS is often delayed in issuing receipt notices for cap cases, and it can take 6 weeks or longer to receive confirmation that a petition has been accepted or rejected. If the wrong filing fees are used and the H-1B cap petition is rejected, the Employer may not find out until after the filing period has expired, which means that the prospective employee will lose their opportunity for an H-1B in Fiscal Year 2025 and will need to be entered into the lottery for Fiscal Year 2026.

Lin Walker 1/28/24 Lin Walker 1/28/24

Notable Client Success: O-1B Approval After Lengthy RFE

We want to celebrate the approval of an O-1B petition for a Singer and Songwriter (Beneficiary or Artist) after the receipt of a Request for Evidence (RFE) that was eight pages long, refused to acknowledge that the evidence submitted showed that the Artist met three of the required criteria, and made up standards that were utterly nonsensical and contradicted not only the regulations but also the USCIS Policy Manual.

As a reminder, in order to qualify for O-1B classification, the Beneficiary must be recognized as prominent in their field as demonstrated by the criteria set for at 8 CFR §214.2(o)(3)(iv):

(A) Evidence they have been nominated for, or have been the recipient of, significant national or international awards or prizes in the particular field such as an Academy Award, an Emmy, a Grammy, or a Director's Guild Award; or

(B) At least three of the following forms of documentation:

Evidence that they have performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications contracts, or endorsements;
Evidence that they have achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications;
Evidence that they have 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;
Evidence that they have a record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications;
Evidence that they have received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged; or
Evidence that they have either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence; or

(C) If the criteria in paragraph (o)(3)(iv) of this section do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence in order to establish the beneficiary's eligibility.

In this case, we submitted substantial documentation evidencing that the Singer and Songwriter met three of the required criteria, including: (1) they achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications; (2) they received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the music industry in the form of seven testimonial letters, five of which were authored by independent experts; and (3) they commanded a high salary or other substantial remuneration for services in relation to others in music industry.

In its RFE, USCIS challenged all of the evidence, claiming that the Artist did not qualify for O-1B classification. Upon close reading of the RFE, it was clear that the USCIS Adjudicating Officer was violating the law because they misinterpreted the regulatory criteria and created qualifying standards that conflicted with the regulations and USCIS’ own Policy Manual. Below, we provide excerpts from the RFE and discuss how we used the Policy Manual to overcome the RFE.

(1) The Singer and Songwriter achieved national or international recognition for achievements evidenced by critical reviews or other published materials about them in major newspapers, trade journals, magazines, or other publications, in satisfaction of 8 CFR §214.2(o)(3)(iv)(B)(2)

In its RFE, USCIS stated:

The evidence you submitted is insufficient.

The record contains several published materials and articles. However, the articles submitted do not recognize the beneficiary for achievements, and how the beneficiary received national or international recognition for those achievements.

In addition, you did not provide evidence to show your articles appeared in publications with the breadth of coverage and readership to confer national or international recognition for achievements as well as significance of these publications.

In our response, we stated that USCIS created adjudicative standards that did not exist anywhere in the statute or regulations and was wholly contradictory to the guidance established in USCIS’ Policy Manual. In its RFE, USCIS states that the articles must “recognize the beneficiary for achievements,” and must state “how the beneficiary received national or international recognition for those achievements.”

This request was beyond the scope of the regulations and was completely circular in logic. Under this ultra vires interpretation, a beneficiary can only establish that they meet this criterion if: (1) they are an artist of prominence; and (2) articles are written about them and their work for the purpose of recognizing their achievements as being extraordinary.

The very fact that Artist and their work are the subject of any publication in major media clearly satisfies this criterion as recognized by the guidance provided in the USCIS Policy Manual, which states:

The beneficiary and the beneficiary’s achievements need not be the only subject of the material in order to qualify as published material about the individual as described in this criterion. For example, published material that covers a broader production, exhibition, or topic, but includes a discussion of the beneficiary, or includes a discussion of the beneficiary’s work or achievement and mentions the beneficiary in connection to the work, may be considered material about the beneficiary… For example, favorable coverage or publication of the beneficiary’s work in major media, as demonstrated by high relative circulation, readership, or viewership figures, could establish national or international recognition of the beneficiary’s achievements.

We enclosed, again, a copy of the media materials about the Artist as well as the circulation data about each publication, confirming that the publications qualified as major media.

(2) The Singer and Songwriter has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field, in satisfaction of 8 CFR §214.2(o)(3)(iv)(B)(5)

In its RFE USCIS states:

The evidence you submitted is insufficient.

You submitted support letters which the authors praise the beneficiary's talent and his past works. However, they do not adequately explain how or why the beneficiary's past work constitutes achievements, how he received recognitions for his achievements, and how his recognitions are significant recognitions. Moreover, the record lacks additional documents to support the authors' claims.

Based on the language above, USCIS again created an adjudicative standard that did not exist in the statute or regulations and was completely contradictory to USCIS’ Policy Manual, which states:

To meet this criterion, the evidence must establish the beneficiary has received significant recognition for one or more achievements from an organization, critic, government agency, or other recognized expert in the field. The word significant in this criterion modifies recognition rather than achievements. Accordingly, although the beneficiary must have one or more achievements, the significance of the recognition is based on who is recognizing the achievements.

A submitted testimonial should detail any achievements that are being recognized by the organization, agency, or individual. However, the testimonial need not describe other types of recognition that the beneficiary has received for a noted achievement. Instead, the testimonial itself may qualify as significant recognition under this criterion when the significance of the recognizing organization, agency, or individual is established.

In direct contradiction to the adjudicatory guidance established in the USCIS Policy Manual, USCIS has focused on the “achievement” itself as needing to be “significant” instead of the “recognition” being “significant.”

In its RFE, USCIS states that the testimonial letters fail to explain how the “beneficiary's past work constitutes achievements.” USCIS does not seem to understand that the Beneficiary’s past work is the very definition of “achievement.” Although the regulations and statute use the term “achievements” for the O-1B, that term is not itself defined. According to Merriam-Webster Dictionary, an “achievement” is “a result gained by effort” or “the quality and quantity of…work”. In this regard, the Artist satisfies this criterion if they have “one or more achievements” [i.e., work(s), works of art, portfolio of work, etc.] and that achievement or those achievements have been recognized by a “significant” organization, agency or individual.

We enclosed, again, a copy of the testimonial letters written by experts in the music industry and included each letter writer’s resume or LinkedIn profile and media materials confirming their stature as experts in the field.

(3) The Singer and Songwriter will command a high salary or other substantial remuneration for services in relation to others in the field, in satisfaction of 8 CFR §214.2(o)(3)(iv)(B)(6)

In its RFE USCIS states:

The evidence you submitted is insufficient.

While you claimed the beneficiary under this criterion, you did not provide sufficient evidence of contractual agreements to establish the beneficiary's salary. Please note that your statement alone does not constitute evidence without further documentation.

Moreover, your submitted agreement suggests that the beneficiary is an independent contractor and you will take a percentage of his earnings. However, please note that wage data from Bureau of Labor Statistics' Occupational Employment Statistics (OES) and the Foreign Labor Certification Data Center use data from the OES program which conducts a semiannual mail survey of employers designed to produce estimates of hourly or annual employment and wages for specific occupations. Data from self-employed independent contractors like the beneficiary is not collected and is not included in the estimates. http://www.bls.gov/oes/oes emp.htm. Therefore, this wage date and other similar sources may not a valid comparison and does not establish how the beneficiary's remuneration is high compared to his peers.

The language in the RFE created an evidentiary standard that did not, and has never, existed for artists to establish that they meet the high remuneration criterion. Based on the language above, USCIS again created an adjudicative standard that did not exist in the statute or regulations and is completely contradictory to USCIS’ Policy Manual, which states:

Petitioners often submit wage surveys to show a comparison. Wage survey data, including but not limited to government wage survey data such as the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics, may be helpful in evaluating the relative compensation for a given field. When evaluating whether an accurate comparison is being made between the beneficiary’s documented remuneration and the remuneration in the survey, the following considerations, among others, may be relevant:

Salary rate being measured. Officers consider whether the comparison data measures an hourly rate or an annual salary. Another consideration is how that information compares to the beneficiary’s pay. Many artists (including MPTV) are not paid an hourly rate but instead are paid a daily rate (which may not be equivalent to 8 hours) or are paid a certain amount for a project (involving an unknown number or hours). However, hourly wage data may still be probative if the petitioner submits documentation regarding the number of hours worked.

Based on USCIS’ Policy Manual, the wage data from OES is absolutely acceptable to determine whether an artist has or will receive high remuneration based on an annual salary or hourly salary.

In this case, we included, again, a copy of the Artist’s live performance contracts and OES wage survey data showing that the average Singer and Songwriter earned approximately $65.00/hour and BLS data showing that the top 10% of wage earners in the occupation earned $100.22/hour while our Singer and Songwriter would earn $600.00 for live performances.

In addition, we included, again, a copy of the Artist’s recording contract and OES wage survey data showing the Level 4 annual salary for a Singer and Songwriter was $130,603 while our Singer and Songwriter would be earning an average annual salary of $350,000 to $650,000 over the course of the contract.

Clearly, whether using an hourly rate or annual salary as the basis for comparison, our client would be receiving significantly higher remuneration that greatly exceeded the remuneration of other similarly situated artists in their field.

Conclusion

After re-submitting the exact same evidence with the explanation above, USCIS approved the O-1B petition for our Singer and Songwriter.

Whenever you receive an RFE from USCIS, it is essential to read the document carefully. In our experience, these RFEs show that the Adjudicating Officers often misinterpret and/or misapply the law, create standards that simply have never and do not exist anywhere in the regulations, create standards that conflict with regulatory requirements and the USCIS Policy Manual, cherry-pick or misquote language that is not relevant to establishing eligibility, or simply confuse one beneficiary’s case with another.

For O-1 petitions, it is essential to work with a qualified business immigration attorney who can provide guidance and legal representation throughout the lifecycle of the case, from the initial filing to responding to challenges from USCIS.

Lin Walker 1/21/24 Lin Walker 1/21/24

How can employers prepare for this year’s H-1B cap

After all, collecting and preparing the required information for the H-1B registration is just the first step.

What else should you consider as an employer?

More than anything, employers need to ensure that the job being offered to the prospective employee qualifies for H-1B classification. It would be terrible to have a registration selected in the H-1B lottery only to have USCIS ultimately deny the petition because the position does not qualify for H-1B classification.

To be eligible for H-1B status, a petitioner must establish that the offered position requires: (1) the theoretical and practical application of a body of highly specialized knowledge; and (2) the attainment of a bachelor’s degree or higher degree in a specific field of study as the minimum entry into the occupation.

The offered position must meet only one (1) of the following four (4) criteria to qualify as a specialty occupation:

Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the particular position; or
The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the job is so complex or unique that it can be performed only by an individual with a degree; or
The employer normally requires a degree or its equivalent for the position; or
The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

In addition, the employer must pay the prevailing wage for the position as determined by its occupational classification and the geographic area of employment. We have created this instructional video that provides the required steps to determine the appropriate prevailing wage for an H-1B position.

Lin Walker 1/14/24 Lin Walker 1/14/24

H-1B Cap Season - FY2025 Considerations and Tips

As we are approaching February 2024, it can only mean one thing for employers and business immigration attorneys: the beginning of H-1B cap season for Fiscal Year 2025 (FY2025). This marks the start of the chaotic period from February to April when hundreds of thousands of H-1B cap registrations are prepared and filed with the hope of securing one of the 85,000 H-1B visa numbers available each fiscal year.

As every H-1B cap season creates significant anxiety and drama for immigration professionals, employers and foreign nationals, what are some positive actions we can take to mitigate these worries? Employers and foreign nationals should plan ahead, and communicate/collaborate meaningfully with their immigration counsel.

With so much at stake for U.S. employers and beneficiaries, we highly recommend that employers engage and collaborate with experienced business immigration attorneys to complete this process. Based on the lessons we learned from previous H-1B Registration periods, we offer the following helpful tips.

U.S. employers will need to immediately collect the following required information from the beneficiary (or their prospective employee):

Full legal name as listed in the Beneficiary’s passport;
Beneficiary’s gender;
Beneficiary’s date of birth (mm/dd/yyyy);
Beneficiary’s country of birth;
Beneficiary’s country of citizenship;
Beneficiary’s passport number; and
Whether the beneficiary possesses a Master’s (or higher) degree from a U.S. college or university.

Keep in mind that USCIS will most likely implement a new selection process this year in order to reduce chances for companies to game the system (and file multiple registrations for same beneficiaries). This new selection procedure will rely on the beneficiary's passport number, which is a unique identifier. USCIS has indicated that if a beneficiary does not possess a passport, they will not be able to be registered in the cap.

During FY2024, USCIS received over 483,000 registrations, more than 176,000 of which were for beneficiaries with multiple registrations, including one beneficiary with 83 registrations. In an effort to cut down on this fraud and misrepresentation, USCIS has promised to implement new selection procedures.

The U.S. employer will also need the following information about their company:

The Federal Employer Identification Number (FEIN);
Corporate headquarters address; and
Name and contact information, including cell phone number and email, of the person who is filing the H-1B registration on behalf of the Employer.

The process to prepare and electronically file H-1B registrations can be anxiety-laden and challenging, so it is essential to work with an experienced business immigration attorney. Follow me for more timely updates.

Lin Walker 12/21/23 Lin Walker 12/21/23

Form I-94, Arrival/Departure Record, and Holiday Travel

As 2023 comes to an end, many global travel restrictions have been lifted and we are entering the peak holiday travel season, it is important to revisit the Form I-94, Arrival/Departure Record, andits significance to foreign nationals who enter the United States as nonimmigrants.

What is the Form I-94, Arrival/Departure Record?

As a nonimmigrant who has been admitted to the United States, in addition to your passport, there is no document more essential to your lawful admission than your Form I-94, Arrival/Departure Record (“Form I-94”).

For nonimmigrants, legal authorization or permission to remain in the United States is controlled by the Form I-94. Nonimmigrants are issued a new Form I-94 upon each entry to the United States and may secure their Form I-94 through the U.S. Customs and Border Protection (“USCBP”) at https://i94.cbp.dhs.gov/I94/#/home.

One of your priorities upon each entry to the United States should be to print and review your Form I-94 and provide a copy to your attorney or HR representative upon each entry to the United States. Given the hectic nature of admissions at U.S. ports of entry and airports, there are numerous opportunities for the Form I-94 to contain errors in the class of admission and the “admit until date”, which is the expiration of the Form I-94 or the authorized period of admission.

What is the Relationship Between My Passport, Nonimmigrant Visa, Form I-797 and Form I-94 work together?

It is very unfortunate that many foreign nationals believe that their nonimmigrant visas control their period of stay in the United States. This mistake can lead to serious financial and legal consequences, as discussed below. The U.S. immigration system is unnecessarily complex and often confusing and there are unique interactions between your passport, visa, Form I-797 and Form I-94. Although a combination of these documents is required for entry into the United States, the most important documents that determine your period of authorized stay are your passport, Form I-94 and Form I-797.

Passports

To enter the United States, you must have a valid passport. Most nonimmigrants entering the United States are required to possess a passport that is valid for at least six months beyond their period of intended stay in the United States. [There is an exception to this rule, known as the “Six Month Club”. Citizens of countries included in the Six Month Club are only required to present a passport that is valid for their intended period of stay. See https://www.cbp.gov/sites/default/files/assets/documents/2017-Dec/Six-Month%20Club%20Update122017.pdf.]

Possessing a passport that is valid for at least six months beyond your period of intended stay in the United States is essential if you are entering the United States in an employment-based nonimmigrant status.

Visas

Generally, nonimmigrants who wish to enter the United States must first obtain a valid visa. The validity period of a nonimmigrant visa is often dictated by the reciprocity agreements between the United States and a foreign country, and often do not coincide with the validity period of the I-797.

The type of visa that a person obtains determines what they are permitted to do in the United States. For example, individuals who receive B-1 or B-2 visas are permitted to enter the United States for temporary business or tourism activities, but are prohibited from working. A person who wishes to attend a U.S. college or university as a full-time student typically receives an F-1 or J-1 visa.

The nonimmigrant visa usually does not impact a person’s period of authorized stay. There are some exceptions to this rule. For example, certain countries have entered into Free Trade Agreements with the United States that enable their citizens to work in the United States based on applications that are filed through the U.S. Embassy in their home country. These include, for example, H-1B1 visas for nationals of Chile and Singapore, and E-3 visas for nationals of Australia. The employment authorization and lawful period of admission for nonimmigrants entering the United States in H-1B1 and E-3 status are directly limited to the validity period of their H-1B1 and E-3 visas.

The nonimmigrant visa determines when you may enter the United States and what activities you are permitted to engage in while in the United States, but usually does not determine how long you may lawfully remain in the United States.

Form I-797

Individuals who seek employment-based nonimmigrant visas, such as an L-1, H-1B or O-1 visa, must first have a petition approved by the U.S. Citizenship & Immigration Services (“USCIS”), which then issues a Form I-797, approval notice. The Form I-797 is used to secure the appropriate employment-based visa, which will permit the foreign national to enter the United States and work. The Form I-797 is typically valid for periods of one (1) to three (3) years, but can have shorter periods of validity, depending on the maximum period of stay permitted by immigration regulations.

The validity period of the Form I-797 should determine the validity period of the Form I-94, and the expiration dates of the two documents should be identical, although mistakes occur. To show the relationship between a person’s passport, visa, I-797 and I-94, we provide some hypotheticals below.

Jane is a citizen of Australia who is entering the United States on December 30, 2021, with an employment-based L-1B visa, which is valid to December 26, 2025. Jane’s Form I-797 is valid until December 26, 2023. Jane’s Australian passport is valid until September 15, 2022.

Admission: When Jane is admitted to the United States, she is given a Form I-94, which is valid until September 15, 2022, which is the expiration date of her passport, not the expiration date of her Form I-797, approval notice. Although Australia is part of the Six-Month club, this rule still requires Australian citizens to present passports that are valid for their intended period of stay, or in Jane’s case, until December 26, 2023.

Issue: If Jane does not check her Form I-94 and realize that it expires on September 15, 2022, she will likely overstay and begin accruing unlawful presence beginning September 16, 2022. If she remains in the United States until December 26, 2023, Jane will accrue more than one year of unlawful presence. Moreover, if she continues to work after September 15, 2022, she will be engaging in unlawful employment.

2. Rajesh is a citizen of India who entered the United States on November 30, 2021, with an employment-based H-1B visa, which is valid through September 30, 2024. He has a Form I-797, approval notice, which is valid through September 30, 2024 and his passport is valid until April 1, 2022.

Admission: When Rajesh was admitted to the United States, he was given a Form I-94 that will expire on April 1, 2022, which is the expiration date of his passport. As India is not a member of the Six Month club, his passport is required to be valid for six months beyond his period of intended stay or until at least March 2025.

Issue: If Rajesh does not check his Form I-94 and realize that it expires on April 1, 2022, he will likely overstay and begin accruing unlawful presence beginning April 2, 2022. If he remains in the United States until September 30, 2024, Rajesh will accrue more than two years of unlawful presence. Moreover, if he continues working on and after April 2, 2022, he will be engaging in unlawful employment

It is important to note that while CBP will fix errors that occur during admission to the United States, the above scenarios where a foreign national is admitted until the expiration date of their passport is not considered an error. CBP will not revise an existing Form I-94, or issue a new Form I-94, to a foreign national who enters the United States with a passport that expires before their intended period of stay.

What are the consequences if I remain in the U.S. after my I-94 expires?

If you remain in the United States beyond the expiration date of your Form I-94, you are deemed to have failed to maintain your lawful nonimmigrant status and may be subject to dire consequences including: (a) automatic cancellation of your visa; (b) permanent ineligibility to apply for a new U.S. visa except at the U.S. Embassy/Consulate in your country of citizenship or residence; and (c) the accrual of unlawful presence. If you accrue more than 180 days but less than 365 days of unlawful presence, you will be subject to a three (3) year bar on re-entry to the United States from the date that you depart. If you accrue 365 days or more of unlawful presence, you will be subject to a ten (10) year bar on re-entry to the United States from the date that you depart.

In addition, if you have failed to maintain your nonimmigrant status, you are not eligible to change your status to another nonimmigrant classification, extend your nonimmigrant status, or adjust your status to lawful permanent resident. In very limited circumstances, USCIS will excuse a nonimmigrant’s failure to maintain status and approve a change of status or extension of status retroactively, however, this discretionary relief is only available in extenuating or extraordinary circumstances. See 8 C.F.R §214.1(c)(4), which permits retroactive or nunc pro tunc approval of an extension of status or change of status petition which is not timely filed if there are extraordinary or extenuating circumstances that caused the failure to maintain status.

Moreover, if you fail to maintain your nonimmigrant status, you are subject to removal proceedings (being deported from the United States).

Conclusion

If you are a nonimmigrant, it is advisable that upon each entry to the United States you print and carefully review your Form I-94 and provide a copy to your employer and/or immigration attorney. This will allow you to catch any potential mistakes immediately. If you discover an error in your classification or period of admission, it is much easier to request that CBP fix the error either while you are at the airport, or shortly after, compared to discovering such a mistake months later, when you may have already fallen out of lawful nonimmigrant status.

If you discover that you have remained in the United States beyond the expiration date of your Form I-94, it is imperative that you seek legal counsel immediately to determine what options may be available to you.

Lin Walker 12/16/23 Lin Walker 12/16/23

EB-1A Pro Tip: Membership in Associations Requiring Outstanding Achievement

In order to be eligible for classification as an EB-1A, a foreign national must establish that they possess a level of expertise in the sciences, arts, education, business or athletics, indicating that they are one of that small percentage who has risen to the very top of the field of endeavor.

This requires submission of evidence that they have sustained national or international acclaim and that their achievements have been recognized in the field of expertise. Such evidence includes a major, internationally recognized award, or at least three out of ten criteria.

For this post, we’re going to focus on documentation of the foreign national's membership in associations in the field, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields [8 CFR 204.5(h)(3)(ii)].

I recently consulted with a foreign national and assessed his credentials for EB-1A classification. He firmly believed that he qualified for EB-1A classification based, in part, on his membership in two organizations in the engineering field. Unfortunately, after completing my assessment and reviewing these two organizations, I had to advise the foreign national that he did not meet this criterion. This was very unfortunate, because he paid thousands of dollars to join them based on the advice he received from an EB-1A coach (who is not an immigration attorney). Even before our consultation, he had already paid thousands of dollars to this EB-1A Coach and then followed her erroneous advice, which resulted in him losing significant money.

To be clear, in order to satisfy the memberships criterion: (1) the organization must require outstanding achievement as a prerequisite for a person to become a member; and (2) the person’s achievements must qualify as “outstanding” as judged by recognized national or international experts in the field of endeavor.

What does this mean? Professional organizations that simply require a person to pay a fee to join, without an assessment of the significance and quality of their contributions to the field, do not qualify as memberships in organizations that require outstanding achievement for EB-1A purposes. The USCIS Policy Manual is clear about this:

“Relevant factors that may lead to a conclusion that the person's membership in the association(s) was not based on outstanding achievements in the field include, but are not limited to, instances where the person's membership was based solely on the following factors (by themselves or in the aggregate):

A level of education or years of experience in a particular field;
The payment of a fee or by subscribing to an association's publications; and
A requirement, compulsory or otherwise, for employment in certain occupations, as commonly seen with union membership or guild affiliation for actors.”

(Emphasis added)

Based on my assessment of the foreign national’s accomplishments, I was able to recommend two organizations for him to join that met the EB-1A criterion for memberships. After he joined, we were able to file a successful EB-1A petition on his behalf.

If you are thinking about petitioning for EB-1A classification, it is essential to work with a licensed business immigration attorney who possesses the immigration law knowledge and EB-1A experience.