With intense competition for many employment-based visas as well as continuing backlogs and processing delays, many employers have turned to alternatives, including the O-1 visa category. These visas make for an ideal option to recruit foreign talent and can provide a fast and effective path to permanent residence for the beneficiary. Employers should be aware that USCIS has provided new guidance for O-1B petitioners, including a detailed look at the distinct O-1 classifications, including O-1A, O-1B Motion Picture and Television (MPTV), and O-1B Arts. In addition, this guidance gives additional details on the standards that will be used in adjudicating petitions under each of these classifications and evidence that must be provided.

One update which USCIS has made in expanding the O-1B MPTV, specifically “the USCIS considers streaming movies, web series, commercials, and other programs with formats that correspond to more traditional motion picture and television productions to generally fall within the MPTV industry’s purview” USCIS has also provided further clarification on when the classification is appropriate. According to USCIS, the O-1B MPTV category should be used when the beneficiary will be performing services on motion pictures or television, even if they will be performing other services outside of these industries. As a result, employers sponsoring artists will carefully want to consider whether or not the individual’s history and proposed work in the U.S. would place them in the MPTV category, which has stricter requirements than an O-1B Arts classification.

Importantly for petitioners, this new guidance clarifies how a determination will be made. The guidance states that USCIS will evaluate petitions using the two-part analysis which the Ninth Circuit set out in the case of Kazarian v. USCIS. In this process, the USCIS will first determine whether the petitioner has provided suitable evidence to satisfy the three evidentiary criteria. Then the petitioner must show that based upon the totality of this evidence, they have demonstrated extraordinary achievement compared to their peers.

This places far more of the evidentiary burden upon the petitioner to provide evidence and convince USCIS that the beneficiary possesses an extraordinary ability. However, in cases where supporting evidence is scarce, this new guidance from USCIS does expand the ability to use comparable evidence when, “However, if the petitioner establishes that a particular criterion is not readily applicable to the beneficiary’s occupation, the petitioner may then submit evidence that is not specifically described in that criterion but is comparable to that criterion.” The guidance provides additional examples of acceptable sources that may be used to prove eligibility.

Employer Takeaways

This new guidance will have a significant impact on how petitions for O-1 visas will adjudicate. It does expand the scope of beneficiaries who may be able to qualify for the program; however, it also raises the evidentiary burden that must be satisfied as well.

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