New USCIS Policy Memo on O-1 Visas Offers Greater Opportunity

Good news for immigrants with extraordinary abilities! A new policy memo issued by the USCIS indicates increased flexibility and clarity in the regulations regarding the length of validity periods for O-1 visas. Here's a brief look at these changes.

When a person applies for an O-1 visa, the validity dates-meaning the period the recipient is allowed to stay in the U.S.-are set around the specific period of time that is required to perform or participate in a certain event or events. Often, this raises a question of whether an itinerary which includes scheduled events, with gaps between events, can be considered one event, or as separate events that require separate petitions. While there was no formal statute or regulation that said that a gap of a specified number of days must define the events as separate, there were many cases in which USCIS adjudicators would conclude that these gaps did indicate separate events. They would then approve the petition only for a validity period around the initial event!

For example, say you were an artist who had an exhibition touring to several different cities, for a few months in each city, and you wanted to be there to set up the exhibition and do a few public appearances at the beginning of each one. In between, however, there were significant gaps. Imagine that you have worked with your immigration attorney, going through all the work of filing an O-1 petition, only to find that your application is approved for only the first city, and you have been asked to do all that work again for each of the other cities!

Fortunately, the USCIS's recent policy memo helps to provide guidance on cases like this, making it clearer that the regulations and statutes provide flexibility in such cases. Adjudicators have been asked to consider the "totality of evidence," in order to decide whether the activities included in the itinerary are related, so that they could be considered as one "event" for the purpose of the validity period. Of course, each case and adjudicator decision will be different, but when the evidence is appropriate and the law allows, adjudicators are allowed to approve O-1 petitions for the period necessary to accomplish the activity, not more than three years.

What's more, the policy now specifies that there is no statute or regulation that states that a gap of a certain number of days in an itinerary necessarily denotes a new event. There is no requirement for a single event. Instead, the focus is on whether the applicant will be working in an area of extraordinary ability.

Anytime there is more clarity in the USCIS policy, the better it is for petitioners. Lack of clarity means more room for differences in the way that cases are judged, and more questions about what you can expect as a petitioner. More clarity means that you can spend more time focused on your work. As a person with extraordinary ability, your work is of the utmost importance.

Vaughan de Kirby
California Immigration Attorney

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