On July 22, 2022, U.S. Citizenship and Immigration Services updated its Policy Manual to provide further guidance on evidence that can be used to support a petition for an O-1A nonimmigrant of extraordinary ability with a focus on science, technology, engineering, and mathematics (STEM) fields. Specifically, USCIS clarified that being named as an investigator, scientist, or researcher on a peer-reviewed and competitively funded U.S. government grant or stipend for STEM research can be a positive factor toward demonstrating that an O-1A nonimmigrant is at the top of their field.
What is O-1A Visa?
The O-1A visa is a type of nonimmigrant work visa for individuals who possess extraordinary ability in the sciences, education, business, or athletics. “Extraordinary ability” is defined as a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor. Compared to the more commonly used H-1B work visa, O-1A status can be applied for at any time, and there is no numerical limit on the number of petitions that can be approved. Therefore, for those individuals who qualify, it can be an important and flexible tool when a U.S. employer plans to hire outstanding talent but doesn’t want to wait until the H-1B registration window is open and to be subject to the uncertainty caused by the numerical limits.
In addition to having a U.S. job offer, O-1A nonimmigrants need to prove extraordinary ability by receipt of a major internationally recognized award such as the Nobel Prize, or by documenting at least three of the following: (1) receipt of nationally or internationally recognized awards; (2) membership in an organization that requires outstanding achievement; (3) published materials about the applicant in professional or major trade publications; (4) judgment of the work of others; (5) original scientific or scholarly work of major significance in the field; (6) evidence of authorship of scholarly work; (7) evidence of employment in a critical or essential capacity at an organization with a distinguished reputation; or (8) has commanded or will command a high salary in relation to others in the field.
Despite its advantages over the H-1B visa, the O-1A visa is not easy to obtain, and requires extensive evidence due to its stringent standards.
Why is USCIS issuing this update?
The July 22 update is a continuation of USCIS Policy Manual updates that were released on January 21, 2022, and it is a part of the Biden administration’s broader effort to “remove barriers to legal immigration” and “advance predictability and clarity for pathways for international STEM scholars, students, researchers, and experts to contribute to innovation and job creation efforts across America,” which was discussed in our previous blog post.
Specifically, with the January and July updates, the USCIS Policy Manual now includes examples of evidence that be potentially relevant towards demonstrating, in the totality of the evidence, that an O-1A nonimmigrant is among the small percentage at the top of the field, with a focus on O-1A petitions for individuals showcasing extraordinary ability within STEM fields.
What does the USCIS update mean to us?
The July 22 update, along with the January 21 update, does not change the legal standard for O-1A visas, but it does provide some clarity with regard to USCIS adjudication of STEM-related O-1A petitions. However, we will need to wait and see how USCIS adjudicating officers apply the new policy update in practice. Due to the complexity of O-1A visas, please contact the Harris Beach immigration team to assess the strength of your O-1A cases.
Our Immigration Law Practice Group includes immigration attorneys that work across New York state in our Albany, Buffalo, Ithaca, Long Island, New York City, Rochester and Syracuse offices.
Our immigration lawyers focus on strategies – including immigrant visas for permanent U.S. resident status and temporary visas for foreign nationals – to ensure that companies are able to hire, transfer, and retain the brightest and best non-U.S. talent.