Extraordinary Ability Petitions Notes

Extraordinary Ability Petitions: O-1 and EB-1

Introduction

• Overview of O-1 and EB-1 extraordinary ability petitions.

• The session is called "Always Extra, Never Ordinary."

• Panelists will discuss the intricacies and requirements of O-1 and EB-1 petitions.

• ACES cases: Athletes, Culture, Entertainment, and Science cases.

Administrative Details

• Turn off cell phones and refrain from conversation during the session.

• Record the four-digit verification code (1075) to obtain CLE credit.

• Record attendance on WebCLE by Monday, June 24, 2024.

• Visit the information desk or consult the AC24 app for questions.

• Q&A will be conducted on the AC app.

• Wi-Fi is available (Ella2024, no password).

• Session sponsored by Lista.io (AILA does not endorse).

LISTA Platform Overview

• Catherine Haight introduces LISTA, a platform designed to streamline case preparation.

• LISTA aims to simplify the evidence gathering and legal analysis involved in ACES cases.

• Workflows consist of 50 to 150 steps.

• The platform utilizes checklists to enhance efficiency and reduce errors.

• The dashboard displays active procedures and templates.

• Users can tag cases by type, company name, sponsor, etc.

• Check off completed steps and track who performed each task.

• Detailed regulatory information (e.g., USCIS index to consultation providers, policy memos) is readily accessible.

• Sample documents (e.g., attorney cover letters) can be downloaded.

LISTA Pricing

• Templates are purchased once and can be used for multiple cases within the firm at no additional cost.

• Platform access costs $20 per month per user.

• O-1 template: $350 + $20/month.

• AILA conference special: Three months free subscription for new subscribers who sign up by June 30 (code: AILA3MO free).

• Website: lista.io

Panel Introduction

• Introduction of panelists and their backgrounds.

• Rita focuses on motion picture, television, arts, academia, sciences, and the medical field.

• Leila specializes in the music industry, motion picture, television, sports, and academia.

• Amanda provides a unique perspective from Purdue University, focusing on academic and research-based EB-1B and O-1 cases.

O-1A vs. O-1B

• Distinction between O-1A (sciences, athletics, business) and O-1B (arts, motion picture, and television).

• O-1A has a higher legal standard than O-1B.

• Importance of correctly defining the field because USCIS may disagree.

• Relevant case: Mott Stables (2015) - highlighted the importance of defining the field correctly.

• The MOTT case was for a horse trainer.

• USCIS considered the trainer as an O-1A in athletics, not O-1B in the arts.

Benefits of Filing O-1B vs. O-1A

• O-1B allows for O-2 support staff in more fields than O-1A (limited to athletics).

• California Service Center prefers business managers in the O-1A category, while Vermont is more open to O-1B.

• O-1A is more similar to the EB-1-1 criteria, advantageous for green card applications.

• Green card is an O-1 on crack.

• Consider the long-term goals (O-2 support, green card) when deciding which O-1 category to pursue.

Assessing New Clients for O-1 Eligibility

• Amanda's approach for researchers and academics:

  • Look for drops in a bucket.

  • Publications, citations, grant fundings.

  • O-1 has a more flexible standard than EB-1B, especially for postdocs.

  • Different types of faculty: visiting, clinical, professors of practice, and teaching faculty.

  • Interdisciplinary faculty need to have an academic field.

Assessing New Clients for O-1 Music Professionals

• Consider hits, likes, and streams, but recognize that immigration may not fully understand their significance.

• Commercial success is important, but USCIS wants additional evidence of the individual's spark.

• Clients should perform in their home country or elsewhere to gain recognition.

• Avoid the trap of seeking discovery in the U.S.

Assessing New Clients for O-1 Motion Picture and TV Professionals

• Press coverage is crucial, especially organic press (not self-generated).

• Press is easier to obtain for on-camera talent.

• For behind-the-scenes roles (cinematographers, editors, etc.), recommendation letters from high-profile sources are essential.

• Google Test: Does the client pass the Google test? If they don't show up at all, that's a red flag.

O-1 to EB-1 Transition

• Manage client expectations regarding the requirements and likelihood of EB-1 approval.

• Communicate clearly about what is currently approved and what is not yet approved.

EB-1 in the Arts

• The standard for EB-1 is much higher than O-1 in the arts.

• Tax implications should always be discussed with a tax advisor because getting a green card is always a taxable event.

• Provide clients with a buildup email outlining steps to meet the EB-1 criteria.

• Examples: Get more articles in industry publications, aim for more recognizability.

• Getting more press: hire a publicist.

Articles in EB-1

• No minimum number of articles. Look at the totality of everything.

• The Kazarian creep is coming into the O-1s.

• Don't be afraid to give them too much is another really good advice.

• Example: Someone with eight Emmys still got an RFE.

• Argument about the executive for lifesavers.

• Assume nothing.

O-1A vs. EB-1A Criteria

• EB-1 criteria are closer to O-1A than O-1B.

• Having an O-1 is not dispositive to EB-1 eligibility.

• USCIS adjudicators consider the EB-1 to be a much higher standard than even O-1A.

Policy Manual Recent Updates

• Doctoral awards (Ph.D.) qualify as awards.

• Young people can have sustained acclaim.

• Peer review qualifies as judging.

• Plurality: Policy manual confirmed that even one membership, if it qualifies, can meet the criterion.

• An officer may not limit the kinds of evidence the officer thinks the person should be able to submit and deny the petition if that particular type of evidence is absent, if the person nonetheless submitted other types of evidence that meet the regulatory requirements.

Reference Letters

• Typical O-1 and EB-1 number of reference letters to include: aim for about five to seven, generate names for about 10.

• Spreadsheet to show the criteria that we're trying to meet and the names across the top to make sure that we have a diversity across all of them.

• Five is my minimum.

• Beyonce rule: If you know Beyonce and four reference letters isn't enough, everyone has to have five reference letters.

Itineraries

• Itineraries for music professionals: Record the music, sell the music, then tour in support of that music.

• USCIS is not looking for the exact date and the exact venue for every place.

• Agency Sponsorship: In arts and entertainment, most of these people don't have regular jobs.

• O-1 petitions: People should have a long term relationship with the agent that sponsors them because if the relationship breaks down, that's the end of the visa.

• Deal memos: Having deal memos or job offers or letters of interest or some type of a document that demonstrates they have real work in The United States, as USCS calls it non speculative employment.

• Agency sponsorship and making sure to set it up the correct way is very important.

• Law school agent partnership law.

• We should probably, as a collective group, stop using the term agent because it confuses everyone.

Special Issues in TV and Film

• The law is very clear that the the event so it's the issue of what's an event, what's an appropriate event, for the purpose of immigration, and that can include short breaks and vacations in between, promotional activities, preproduction, postproduction.

• What is motion picture and TV?: So is it just the actor, you know, just people who are on screen? No, it's anyone who works in the field of in support of producing a a film or a television production.

• Below the line: Individuals who work in support of people who are on screen.

• The director, the producer, it's the makeup, hair and makeup work.

• The policy manual provided some really interesting information answering questions that I think a lot of us have had.

• What qualifies as motion picture TV?: Is it all on screen material? No so video self produced video blogs and things like that are not motion picture TV.

• Reality TV, when do you need an O-1 in motion picture TV?: If somebody works as a host or a judge on the reality television show, they do need an appropriate visa.

• The recurring personality on a reality TV.: A reality influencer.

• Competition for prize money: That is a b one activity that you can do on screen even for reality people, but if there's any kind of guaranteed stipend, they need a work permit.

• You go to aa and PTP and you're like, hey, we need we need the consultation and they're like, this is not motion picture TV, so we're not doing that.

Special Issues post 2023 SAG AFTRA strike

• SAG is a union that that supports actors.

• SAG did not issue any consultations during the strike.

• Their policy now is that they will only issue consultation to an actor who's working on a union project, on SAG project.

• File cases with an email printout saying they will not issue a consultation for a nonunion project.

• Adding their old consultation if this is a repeat one."

Academic Cases

• People is it's not e b one b, but business is STEM, and STEM is STEM PhD for those NIWs.

• Not entirely weird, but connects to a few of the questions.

• We have done EB ones for part time researchers who have entrepreneurial gigs on the back.

• We will draw in information about the start up and the impact on jobs and bring that in as comparable evidence.

Survey results for Academia

• General assessment is good provided they are specific.

• Evaluations that are nonspecific.

• Have heads come to me and complain that it's gibberish.

• Also flags an issue for me when I see a poorly constructed AI developed letter as to whether or not the law firm is protecting the privacy of the individual.

• EB-1Bs are an employer filing.

• Every single institution contacted does not allow faculty to hire their own EB-1Bs, and that is in fact the employer's choice.

• We want you to flag issues that are concerns.

• Have that tough conversation for me wins me your favor.

• Yacht captain weird case.

Unusual Cases

• The o one nail tech for the guitar player that to be able to play very legendary guitar player needed a nail tech, that from Eastern Europe.

• Art model models and the nude for artists and photographers.

• An elephant trainer who work's at a large zoo now in Miami, and his particular specialty is delivering elephant babies.

• Entrepreneurial gigs on the back that they are having a part time position at Purdue, they have a start up in which we draw in information about the start up and the impact on jobs and bringing that in as comparable evidence.

A. I. AND ChatGPT

• AI is fine to be used to build a paragraph and not a letter.

• Does AI protect the privacy of the individual?

• A.I. Cannot impose new and novel requirements, and they do that a lot in RFEs. So when they say something that's, go look at the regs and quote them back the regs.

• Look at two recent cases.

• called Scripps College.

• called Golani.

• District court said that USCIS cannot impose their own criteria or novel requirements.

• In Golani, they said that they have to explain why they're saying something doesn't qualify or doesn't work, particularly with regard to reference letters.

Business Executive Cases

• Stem the policy manual for that a lots of good work.

• Also media is important in o one a business . But it is tricky because always working by the same organization,

Conclusion

• Aces lunch and learn is tomorrow at 11:50.

• CLE code for this session is 1075.

• We're advocates for our clients. Don't be afraid to push back and advocate and use the law. The law is developing. Lots of people are going to district court, and there's some good decisions that are coming out.