Both nonimmigrant and immigrant visas are available to qualified people who can prove that they have extraordinary ability in the sciences, arts, education, business or athletics. For a thumbnail sketch of the nonimmigrant visa, known as the O-1, click here. For a similarly brief overview of the immigrant visa for aliens of extraordinary ability, click here.

The ‘extraordinary ability’ category offers many advantages to qualified applicants. The nonimmigrant visa, the O-1, has no annual quota and therefore qualified applicants need not fear that applying too late in a US Government fiscal year will mean that they are closed out of the US market for another year. The O-1 can be granted initially for up to three years and can be renewed indefinitely as long as the applicant continues to qualify and to maintain O-1 status. In addition, there is no need for O-1 applicants to show that they maintain a residence outside the US to which they will return after their visits to the US.

The immigrant visa for aliens of extraordinary ability offers among other benefits the valuable option to self-petition, thereby dispensing with the need to obtain a sponsor. The ability to proceed without a sponsor can have great appeal both practically and psychologically.

The United States Citizenship and Immigration Services (‘USCIS’) is entrusted with determining which applicants may enter the United States, or remain there permanently, on the basis that they are aliens of extraordinary ability in the sciences, arts, education, business or athletics. Anecdotal evidence suggests that the agency is intent on making the test as strict as possible and that standards are being raised. However, our recent experience indicates that these nonimmigrant and immigrant visas are eminently achievable for persons who truly are at or near the top of their fields, as long as the necessary petition and supporting documents are prepared carefully and creatively.

The Administrative Appeals Office (‘AAO’) of the USCIS periodically publishes its decisions in this subject area.  These decisions give us the most recent available insights into what will constitute an approvable case. The lessons to be learnt include: Identify your field of expertise wisely; time the petition carefully; and ensure that referees’ letters are written in conformity with the AAO’s suggestions. We offer the following summaries of some of the notable cases published by the AAO during 2009, for the light they may shed on evolving standards in this area.   Summaries of earlier decisions are archived and can be found here.

We invite you to bookmark this page and to check back on a regular basis as we will add new AAO decisions as soon as they are released.

Please note that this short article cannot possibly cover all permutations of the law, and should not be relied upon as a substitute for legal advice tailored to the specifics of your situation. If you believe that legal advice would be helpful you should consult a qualified US immigration attorney.

Also: Nonimmigrant visas are available to persons in the field of motion picture or television production, upon a showing that they are of ‘outstanding achievement’ in their field. The criteria for such visas are different from those set out above. Please see our website article Lights! Camera! Visa! Aliens of Extraordinary Achievement in Film and Television.

Immigrant Visas

For immigrant visas, an alien is required to show that he or she has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise. To prove this level of acclaim he must either show that he has received a major, internationally-recognized award, or produce probative evidence on at least 3 of the ten criteria set out in the Code of Federal Regulations, at 8 CFR § 204.5(h). To review the regulations click here.

In re [name omitted]:  LIN 07 152 50144 (Nebraska Service Center January 2, 2009)

An artist and art director, who had previously been issued an O-1 nonimmigrant visa as an alien of extraordinary ability in the arts, was denied immigrant classification.  The AAO pointed out that the standards are different and that the immigrant classification is more difficult to achieve:

Given the clear statutory and regulatory distinction between these two classifications, the petitioner’s receipt of O-1 nonimmigrant classification is not evidence of his eligibility for immigrant classification as an alien with extraordinary ability.

The artist’s receipt of grant money for future projects ‘is not a nationally or internationally-recognized prize or award for excellent achievement.’   Finally, excellence in academic study was not helpful to the petition:  ‘University study is not a field of endeavor, but rather training for future employment in a field of endeavor.’ 

In re [name omitted]:  LIN 06 144 51517 (Nebraska Service Center January 8, 2009)

The AAO upheld the denial of immigrant status to an acclaimed swimmer who sought immigrant status not as an athlete but as a coach.

Although a nexus exists between playing and coaching a given sport, to assume that every extraordinary athlete’s area of expertise includes coaching would be too speculative. To resolve this issue, the following balance is appropriate: in a case where an alien has clearly achieved national or international acclaim as an athlete and has sustained that acclaim in the field of coaching at a national or international level, we can consider the totality of the evidence as establishing an overall pattern of sustained acclaim and extraordinary ability such that we can conclude that coaching is within the petitioner’s area of expertise.

Because the petitioner could not show that her students had won nationally or internationally recognized prizes or awards the AAO found that she had not demonstrated that she was a coach of extraordinary ability. 

In re [name omitted]:  LIN 07 060 51564 (Nebraska Service Center February 17, 2009)

A petition arguing that the beneficiary was an alien of extraordinary ability in the field of ‘niche wine’ marketing was denied by the Nebraska Service Center because the petitioner attempted to define the field of speciality too narrowly.  Upon appeal, the AAO reversed the decision finding that the beneficiary qualified for the classification in the broader field of wine marketing. 

As the statute requires evidence of sustained national or international acclaim, a petitioner cannot narrow the alien’s field to such a small group that rising to the top of the group has no meaning.  Our review of the record leads us to conclude that the beneficiary’s field is marketing.  Even if we limited the beneficiary’s field to wine marketing, it is not appropriate to limit the beneficiary’s field any further to include only those that market a specific type of wine.

In re [name omitted]:  LIN 07 142 50081 (Texas Service Center March 3, 2009)

A petition for immigrant classification of a Peruvian Paso horse trainer was denied by the Service Center and the denial was upheld on appeal to the AAO.  Assertions that the beneficiary had been selected as a judge of the work of others in his field were found unpersuasive, both because there was no proof that he had yet served as a judge, and because there was no proof that his activities as a judge ‘involved judging top competitors or were otherwise consistent with sustained national or international acclaim at the very top level of his field.’

In re [name omitted]:  EAC 06 012 52329 (Nebraska Service Center March 4, 2009)

A self-petitioner, an assistant professor at the State University of New York, was able to demonstrate that he was an alien of extraordinary ability in the field of mathematics.  He had reviewed multiple papers submitted for publication, which satisfied the criterion that he have served as a judge of the work of others.  His original research was found to be ‘of major significance in the field,’ as attested by several letters of support from high-ranking academics.  Finally, he was able to show that he had authored scholarly articles in his field.  The AAO did not raise its usual objection to such petitions by academics, to the effect that publishing numerous articles is a requirement of academic life, and not a sign of extraordinary ability.  Apparently this objection was avoided through showing that numerous articles cited his work:  ‘These numerous citations demonstrate the significance of the petitioner’s articles to his field.’

 
In re [name omitted]:  LIN 07 137 52310 (Nebraska Service Center March 20, 2009)

The AAO held that the alien was of extraordinary ability in the sciences although, rather confusingly, his field of specialty was defined as ‘business operations specialist in the game music industry.’  He had received two awards in his field, been quoted in various trade publications, and had participated as a judge of the work of others in his field.   Even published articles that were not primarily about the self-petitioning alien were found helpful:

While not all of these articles are primarily about the petitioner, they demonstrate that the preceding media sources view him as an international expert in his field and therefore are they [sic] consistent with his having sustained international acclaim in the game music industry.

In re [name omitted]:  LIN 07 064 50797 (Nebraska Service Center March 31, 2009)

A Serbian folk singer was found not to have the sustained national or international acclaim required for immigrant status.  The AAO found unpersuasive the letters of recommendation that purported to explain the significance of the awards she had received: 

Letters from the petitioner’s colleagues are insufficient to establish national or international acclaim associated with the awards as they do not come from an impartial source and do not indicate how the authors learned of the information….

Even when written by independent experts, letters solicited by an alien in support of an immigration petition are of less weight than pre-existing, independent evidence of original contributions of major significance that one would expect of an artist who has sustained national or international acclaim at the very top of the field.

In re [name omitted]:  LIN 07 116 51097 (Nebraska Service Center April 2, 2009)

An expert in the field of semiconductor metrology was denied immigrant classification even though he had been granted O-1 nonimmigrant classification as an alien of extraordinary ability.  Proof that the individual held patents was not persuasive of original work of major significance in the field:  ‘The grant of a patent shows only that an invention is original…[T]he significance of the innovation must be determined on a case-by-case basis.’

The AAO was frank about the lack of weight given to previous O-1 approvals in the context of an immigrant visa petition:

While USCIS has approved an O-1 nonimmigrant visa petition filed on behalf of the petitioner, that prior approval does not preclude USCIS from denying an immigrant visa petition based on a different, if similarly phrased standard.  It must be noted that many I-140 immigrant petitions are denied after USCIS approves prior nonimmigrant petitions…Because USCIS spends less time reviewing I-129 nonimmigrant petitions than I-140 immigrant petitions, some nonimmigrant petitions are simply approved in error.

In re [name omitted]:  LIN 07 212 51226  (Nebraska Service Center April 29, 2009)

The Nebraska Service Center originally denied this petition on the grounds that the petitioner had not submitted sufficient evidence that he would continue to work in his area of expertise, once admitted to the United States as an immigrant.  The AAO reversed that finding, but then went on to hold that the alien did not qualify as being of extraordinary ability in the arts, as a musician and vocalist.  His collection of certificates of participation and minor awards from radio stations did not qualify as ‘nationally or internationally recognized awards’ in his field.  He was a member of an association, but did not produce evidence to show that the association required outstanding achievements of its members.  Moreover, organizing a one-time event (a benefit concert) was not enough to satisfy the criterion found in clause 8 of the regulations:

We cannot conclude that organizing a one-time event such as a benefit concert is tantamount to performing in a leading or critical role for an organization or establishment with a distinguished reputation.  In this case, the petitioner has not submitted evidence establishing that he was responsible for a distinguished organization’s success or standing to a degree consistent with the meaning of ‘leading or critical role’ and indicative of sustained national or international acclaim.

In re [name omitted]:  SRC 06 239 52578 (Texas  Service Center May 4, 2009)

The fact that videos made by the petitioner were available on YouTube and MySpace did not persuade the AAO that he was an alien of extraordinary ability. 

The Internet in general, and YouTube and MySpace in particular, are arenas available for posting by any user with access to a computer regardless of notoriety or recognition of the persons portrayed in the online postings…We are not persuaded that international accessibility on the Internet by itself is a realistic indicator of whether a given website constitutes ‘major media’ published material…Accessibility on a site that allows anyone to upload their own videos, including amateur videos, does not carry the evidentiary weight of independent journalistic coverage in the major media. 

In re [name omitted]:  SRC 07 102 52476  (Texas Service Center June 1, 2009)

A scientific researcher was denied classification as an alien of extraordinary ability.   The AAO upheld the decision of the Texas Service Center and addressed a number of the criteria the petitioner had tried to establish.  First, on the topic of original research: 

While the petitioner’s research is no doubt of value, it can be argued that any research must be shown to be original and present some benefit if it is to receive funding and attention from the scientific community.  Any Ph.D. thesis or postdoctoral research, in order to be accepted for graduation, publication, presentation, or funding, must offer new and useful information to the pool of knowledge.  It does not follow that every researcher who performs original research that adds to the general pool of knowledge has inherently made a contribution of major significance in the field.

The receipt of research grants is no proof that the recipient is of extraordinary ability: 

We note that a substantial amount of scientific research is funded by research grants from a variety of public and private sources.  Therefore, we cannot conclude that obtaining research funding is evidence that one’s work is already recognized as having major significance in the field.

When one works in a field where publication of articles is required, the citation history of those articles must be examined in order to judge their importance:

We take administrative notice of the fact that authoring scholarly articles is inherent to scientific research.  For this reason, we will evaluate a citation history or other evidence of the impact of the petitioner’s articles when determining their significance to the field.  For example, dozens of independent citations for an article authored by the petitioner would provide solid evidence that other researchers have been influenced by her work and are familiar with it.  On the other hand, few or no citations of an article authored by the petitioner may indicate that her work has gone largely unnoticed by her field.  In this case, the petitioner submitted evidence showing that her published articles have been independently cited an aggregate of six times.  While these citations demonstrate a small degree of interest in her published work, they are not sufficient to demonstrate that her articles have attracted a level of interest in her field consistent with sustained national or international acclaim.  In light of the above, the petitioner has not established that she meets this criterion.

In re [name omitted]:  LIN 07 180 52857  (Nebraska Service October 2, 2009)
Scholarships to attend university and graduate school do not constitute ‘nationally or internationally recognized prizes or awards for excellence in the field of endeavor.’ 

University study is not a field of endeavor, but rather training for future employment in a field of endeavor.  The petitioner’s university scholarships offer no meaningful comparison between him and experienced researchers in the field who had long since completed their academic studies.  The petitioner seeks a highly restrictive visa classification, intended for individuals already at the top of their respective fields, rather than for individuals progressing toward the top at some unspecified future time.

In re [name omitted]:  LIN 06 199 521 14 (Nebraska Service Center October 5, 2009)

The petition for immigrant status as an alien of extraordinary ability in science was originally approved.  However, when the consular officer in the US Embassy in Riyadh interviewed the applicant, the officer returned the petition for investigation and possible revocation.  Upon review the USCIS reversed itself, denying the petition, and this denial was upheld by the Administrative Appeals Office. 

The AAO rejected information that was sourced from Wikipedia, stating that there were ‘no assurances about the reliability of the content from this open, user-edited Internet site,’ and therefore it would give no weight to information for which Wikipedia was the only cited source.

The petitioner/researcher’s long list of publications was found less than persuasive of his ‘extraordinary ability’ status, because such publication is required of persons in such positions. 

Duties or activities…do not demonstrate national or international acclaim if they are inherent or routine in the occupation itself.  As frequent publication of research findings is inherent to success as an established research scientist, publications alone do not necessarily indicate the sustained acclaim requisite to classification as an alien with extraordinary ability.

In re [name omitted]:  SRC 08 081 52572 (Texas Service Center October 29, 2009)

Competitive sport and coaching that same sport are not the same area of expertise.  The AAO set out the following rule on the subject:

We recognize that there exists a nexus between playing and coaching a given sport.  To assume that every extraordinary athlete’s area of expertise includes coaching, however, would be too speculative. To resolve this issue, the following balance is appropriate.  In a case where an alien has clearly achieved recent national or international acclaim as an athlete and has sustained that acclaim in the field of coaching at a national level, we can consider the totality of the evidence as establishing an overall pattern of sustained acclaim and extraordinary ability such that we can conclude that coaching is within the petitioner’s area of expertise.  Specifically, in such a case we will consider the level at which the alien acts as coach.  A coach who has an established successful history of coaching athletes who compete regularly at the national level has a credible claim; a coach of novices does not.

Nonimmigrant Visas (O-1)

To qualify for an O-1 nonimmigrant visa, an alien must show that he or she has extraordinary ability in the sciences, arts, education, business or athletics. (As set out above, this article does not address the standard for showing that a person is of ‘outstanding achievement’ in the field of motion picture or television production. Please see Lights! Camera! Visa! Aliens of Extraordinary Achievement in Film and Television.)

The standards for demonstrating extraordinary ability differ depending on the field of one’s endeavor. Aliens in the fields of science, education, business or athletics must demonstrate ‘sustained national or international acclaim and recognition for achievements in the field of expertise.’ To see the USCIS regulations on this subject click here.

For aliens in the arts, the standard is slightly different, in that the person must show that he or she is ‘prominent in his or her field of endeavor.’ The USCIS regulations spelling out the type of evidence required can be found by clicking here.

In re [name omitted]:  WAC 07 800 12235  (California Service Center February 9, 2009)

A beneficiary who had worked in a variety of widely-differing occupations was found not to be extraordinary in any one of them.  The AAO upheld the denial of O classification, pointing out that the petition must clearly identify the claimed field of extraordinary ability. 

In re [name omitted]:  WAC 07 273 54624  (California Service Center March 11, 2009)

The AAO upheld the California Service Center’s denial of O-1 classification to a ballroom dance instructor.  The petitioner, a dance school, had argued that the evidentiary standard should be that of an alien of extraordinary ability in the arts, but the AAO agreed with the Service Center that the higher standard, for aliens of extraordinary ability in athletics, should be used.  The beneficiary did not qualify under that higher standard.

In re [name omitted]:  WAC 07 054 53345  (California Service Center May 1, 2009)

The petitioner had sought O-1 classification for a prospective employee as a ‘gymnastics and circus arts coach.’  Ruling that the petitioner needed to establish that the applicant was an alien with extraordinary ability in athletics, the California Service Center denied the petition.  However, on appeal the AAO held that the proper standard was that of extraordinary ability in the arts:  ‘While competitive gymnasts and circus acrobats may possess similar skills, the fields are clearly different, and the AAO finds it reasonable to classify the former as athletes and the latter as artists.’  The case was therefore remanded to the California Service Center with directions to apply the appropriate standard to the evidence adduced by the petitioner. 

In re [name omitted]:  EAC 06 036 53088 (Vermont Service Center September 4, 2009)

An earlier grant of O-1 classification for an athlete/coach was revoked for ‘gross error,’ even though the petition approved had already expired.  The AAO defined the term ‘gross error’ as follows:

Upon review of the regulatory history and the common usage of the term, the AAO interprets the term ‘gross error’ to be an unmitigated or absolute error, such as an approval that was granted contrary to the requirements stated in the statute or regulations.  Regardless of whether there can be debate as to the legal determination of eligibility, an approval that USCIS determines to have been approved contrary to law must be considered an unmitigated error, and therefore a ‘gross error.’