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IMMIGRATION NOVEMBER 11, 2022 | The Indian Eye 36
USCIS Guidance Enabling STEM Graduates to Obtain
O-1 Extraordinary Visas Should Apply Equally to EB-1
Extraordinary Petitions for Green Cards
BY CYRUS D. MEHTA & appendix describing examples arts have been moved under a benefit from a National Inter- 6. Evidence of the alien’s au-
JESSICA PASZKO of evidence that may satisfy different section in the regula- est Waiver, this path may not thorship of scholarly articles
the O-1A evidentiary criteria, tions at 8 C.F.R. § 214.2(o)(3) befit them with a green card in the field, in professional
arlier this year, the US- as well as considerations that (iv). See the INA provisions for for many years, even decades, journals, or other major me-
CIS issued policy guid- are relevant to evaluating such EB-1A under INA § 203(b)(1) if they are nationals of back- dia;
Eance in the USCIS Pol- evidence (with a focus on evi- (A) and the O-1A under INA logged countries such as India 7. Evidence that the alien has
icy Manual to clarify how the dence and considerations that § 101(a)(15)(O). See also the or China. If Indian born ben- been employed in a critical
USCIS evaluates evidence to are relevant to STEM fields) regulatory criteria for the EB- eficiaries can qualify for the or essential capacity for or-
determine eligibility for O-1A and provides examples of qual- 1A under 8 C.F.R. § 204.5(h) O-1A under the new guidance, ganizations and establish-
nonimmigrants of extraordi- ifying comparable evidence (3) and for the O-1A under 8 they should similarly be able to ments that have a distin-
nary ability, with a focus on that petitioners could provide C.F.R. § 214.2(o)(3)(iii). How- qualify for the EB-1A as this guished reputation;
persons in science, technolo- in support of a petition for a ever, and most notably, a vic- category is current for India 8. Evidence that the alien has
gy, engineering, or mathemat- beneficiary in a STEM field. tory under EB-1A comes with and all other countries under either commanded a high
ics (STEM) fields. The O-1A The O-1A visa is the non- a green card, while a victory the State Department Visa salary or will command a
nonimmigrant visa is available immigrant “cousin” of the under O-1 comes with a tem- Bulletin. high salary or other remu-
to persons of extraordinary employment based first prefer- porary period of authorized 8 CFR § 214.2(o)(3)(iii) neration for services, evi-
ability in the sciences, business, ence immigrant visa (EB-1A) employment. While there is no provides that: denced by contracts or other
education, and athletics. The for individuals with extraor- limit on the number of times reliable evidence.
O-1B is available to persons dinary ability, often dubbed that an O-1 can be extended, An alien of extraordi- (C) If the criteria in paragraph
with a record of extraordinary the Einstein visa. The two visa there are virtually no paths to nary ability in the fields of (o)(3)(iii) of this section do not
science, education, business,
achievement in the motion categories mirror one anoth- citizenship for O-1 beneficia- or athletics must demonstrate readily apply to the beneficiary’s
picture of television industry er and require petitioners to ries unless they can qualify un- occupation, the petitioner may
or to persons who have gained effectively establish the same der any of the other employ- sustained national or interna- submit comparable evidence in
distinction in the arts. The evidentiary criteria. But note ment-based (EB) preference tional acclaim and recognition order to establish the beneficia-
new guidance has not added that the regulatory standards categories, such as EB-1, EB- for achievements in the field ry’s eligibility.
of expertise by providing evi-
additional criteria or require- for an O-1A require that the 2, or EB-3. However, the very dence of: To satisfy the second cri-
ments for O-1A applicants in beneficiary meet only eight reason that one many apply terion, USCIS has typically re-
STEM, but has, among oth- rather than 10 criteria as the for the O-1 is because the oth- (A) Receipt of a major, interna- quired that the petitioner show
er things, added a chart in an criteria for beneficiaries in the er EB categories are not the tionally recognized award, such that membership in the asso-
right fit for that particular as the Nobel Prize; or ciation requires outstanding
(B) At least three of the following
beneficiary. For instance, forms of documentation: achievements in the field for
because they don’t have 1. Documentation of the which classification is sought,
a qualifying degree or an alien’s receipt of nationally as judged by recognized na-
employer who wishes to or internationally recog- tional or international experts.
pursue the lengthy and nized prizes or awards for In cases where associations
costly PERM labor certi- excellence in the field of en- may have multiple levels of
fication process on their deavor; membership, the petitioner
behalf. Many who seek 2. Documentation of the must show that in order to ob-
an O-1A are founders alien’s membership in as- tain the level of membership
of their own companies sociations in the field for afforded to the beneficiary,
which would make labor which classification is the beneficiary was judged
certification virtually im- sought, which require out- by recognized national or in-
possible. Those who are standing achievements of ternational experts as having
unable to file labor cer- their members, as judged by attained outstanding achieve-
tifications because they recognized national or inter- ments in the field for which
own their companies may national experts in their dis- classification is sought. In light
sidestep the labor certifi- ciplines or fields; of the new policy guidance,
cation process by apply- 3. Published material in pro- USCIS has provided a possible
ing for a National Interest fessional or major trade example that may be helpful to
Waiver. Still, to apply for publications or major media STEM beneficiaries. It states:
a National Interest Waiv- about the alien, relating to [M]embership in the In-
er, the USCIS considers the alien’s work in the field stitute of Electrical and Elec-
whether the person’s for which classification is tronics Engineers (IEEE) at
proposed endeavor has sought, which shall include the IEEE fellow level requires,
m of both substantial merit the title, date, and author of in part, that a nominee have
and national importance,
“accomplishments that have
CYRUS D. MEHTA & PARTNERS PLLC the person is well posi- such published material, and contributed importantly to the
any necessary translation;
tioned to advance the advancement or application of
proposed endeavor, and 4. Evidence of the alien’s par- engineering, science and tech-
that it would beneficial to ticipation on a panel, or in- nology, bringing the realization
the U.S. to waive the job dividually, as a judge of the of significant value to society,”
work of others in the same
offer and thus the perma- or in an allied field of spe- and nominations are judged by
nent labor certification cialization to that for which an IEEE council of experts and
requirements. See Mat- classification is sought; a committee of current IEEE
ter of Dhanasar, 26 I&N 5. Evidence of the alien’s orig- fellows. As another possible
Dec. 884 (AAO 2016). inal scientific, scholarly, or example, membership as a fel-
At the same time though, business-related contribu- low in the Association for the
2 6th Floor for some EB-2 beneficia- tions of major significance in Advancement of Artificial In-
ries, even those who can the field; telligence (AAAI) is based on
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