Risks and Benefits of the O-1A Nonimmigrant Classification

Miles & Stockbridge P.C.

The O-1A is a nonimmigrant classification that allows employers and agents to temporarily employ individuals who have “extraordinary ability” in the areas of science, education, business, or athletics in the United States. It initially allows up to three years of employment in the US, and it can be extended in one year terms. The category is reserved for those who have “sustained national or international acclaim and recognition” and are acknowledged as “one of the small percentage who have arisen to the very top of the field of endeavor.” Recent trends in requests for evidence (RFEs) in this classification, as well as the unique benefits of the O-1A for foreign nationals, merit further discussion.

The O-1 category has been used to invite various individuals, including foreign doctors, researchers, educators, and professional athletes, to the US for nearly 30 years. The number of O-1A petitions received by the USCIS has been increasing steadily since 2015. In fiscal year 2019, the United States Citizenship and Immigration Service (USCIS) received 26,507 petitions in this classification. Upon receiving an O-1A petition, the USCIS may approve it, deny it, or issue a request for evidence in support of the petition.

Despite the longevity of the O-1A classification, the path to qualifying in this category is far from transparent. Put simply, although eight categories of evidence are enumerated in the applicable regulations, the “extraordinary ability” standard is subjective. According to USCIS data, in 2017, 74% of O-1 petitions issued an RFE were ultimately approved. The percent of petitions approved after RFE dropped to 66 percent in 2020. While the post-RFE approval rate has decreased, the percent of petitions issued an RFE has increased; 30.2% of completed cases in the first three quarters of 2020 had been issued an RFE. This is the highest rate of RFE since 2015. As depicted below, the percent of O-1 petitions approved after an RFE has overall been trending downward in the past three years.

The USCIS issues RFEs for a variety of reasons, from the simple request for a clear copy of a passport biographic data page, to one that rejects the evidence provided without due consideration. These “kitchen-sink” RFEs raise the question of whether the adjudicator reads the evidence and expert testimony requested. In the context of O-1A petitions for researchers, professors, and physicians, RFEs are commonly issued requesting more published material about the proposed employee; confirmation that the publications of the proposed employee are indeed scholarly; further evidence documenting that the proposed employee has judged the work of his or her peers; and, more evidence to document that the proposed employee’s contributions are in fact both original and of major significance. Each of these categories of evidence requires a careful response so as to reiterate the proposed employee’s extraordinary ability in the most compelling light.

Despite the recent trend towards RFE and denial, the O-1A is a valuable non-immigrant classification permitting US employers to employ foreign nationals and ought to be considered if a proposed employee is not selected for the H-1B cap. The O-1A classification has benefits that distinguish it from other nonimmigrant classifications, such as H and L classifications. First, the O-1A category is not subject to an annual statutory cap; second, it does not limit the number of years a foreign national is permitted to hold the status; and third, it allows a foreign national to be employed in the US while the employee is subject to the INA § 212(e) home residence requirement.

INA § 212(e) prohibits certain foreign nationals from obtaining an H or L visa or changing nonimmigrant statuses within the US. A foreign national who entered the US as an exchange visitor (i.e., J-1 status) may be subject to INA § 212(e). J-1s can become subject due to government funding, sponsorship by the Educational Commission for Foreign Medical Graduates (ECFMG), or because of application of the Exchange Visitor Skills List. The J-1 program was designed to foster the exchange of ideas between the US and other countries, and to honor this goal of the J-1 program, Congress included a requirement that the exchange visitor return to his or her home country for two years. Nonetheless, not all foreign nationals are ready to depart the US at the completion of their J-1 program and in such cases, the O-1A can be a valuable tool.

The O-1 nonimmigrant classification is designed for individuals with extraordinary ability in the sciences, education, business, or athletics who wish to provide services in the United States in a temporary status. It ought to be explored by foreign nationals and their prospective employers. 

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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