The O-1 is a good visa option for individuals with extraordinary abilities in the sciences, arts, education, business, or athletics, or with a demonstrated record of extraordinary achievement in the motion picture or television industry who want to come to the U.S. to continue working in the areas of extraordinary abilities. Our office handles a lot of extraordinary ability petitions for scientists in a variety of fields. This article was prepared by attorney Ekaterina Powell from our office.
Dr. Y, a citizen of Ethiopia, came to the U.S. on a J-1 visa as a Research Scholar. For years, she has been engaged in extensive scientific research and has acquired recognition for her achievements in the field of probiotics. With her J-1 status expiring in the coming weeks, Dr. Y received a job offer from an established biotech company specializing in the development and commercialization of probiotic dietary supplements. In the proposed research position within the organization, Dr. Y could continue her innovative research for the development of probiotic supplements as an alternative treatment for kidney failure, as immune system optimization, and for prevention of many diseases.
Dr. Y came to our office inquiring about her options to stay in the U.S. and work for the biotech company. With no more H-1B visas available, the best option for Dr. Y was applying for an O-1 visa. With only a few weeks left to prepare the O-1 petition, Dr. Y was very worried at first that there was not enough time to get everything ready. We assured Dr. Y that with her cooperation in gathering the documents, we would do whatever it takes to prepare a strong case and file it within the deadline, and we were successful in doing so.
Dr. Y’s background and research experience supported application for O-1. Dr. Y has made several important contributions to the field of probiotic research that have been recognized and relied upon by some of the most highly esteemed experts in the field of probiotic research. Dr. Y’s articles have been published in internationally recognized peer-reviewed scientific journals and have been widely cited worldwide. Dr. Y has presented her work at major scientific conferences, has served as a peer reviewer for manuscripts accepted for publication, and has received many honors and awards.
The biggest challenge in this case was of course the tight deadline for its filing, but with the cooperation of Dr. Y and her ability to gather all the required documents, we were able to put together a very strong O-1 case within only a few weeks.
As we see in our practice, typical challenges of an O-1 case for a scientist are summarized below.
CLEAR AND CONCISE WAY OF PRESENTATION OF EVIDENCE
The key in each O-1 case is careful preparation and presentation of evidence.
The first thing that we did in Dr. Y’s case, as in any other O-1 case for a scientist, was obtaining the background summary of the scientific research of the individual. When clients provide us with an overview and explanation of their work, we are able to better assist them in collecting the necessary evidence and present the case in a clear and concise manner.
As we see in our practice, the biggest challenge for scientists is explaining what they do in layman non-technical terms. Scientists are used to writing articles and presenting at conferences where their audience is other researchers in the field who understand the scientific terminology used. However, neither the USCIS officers who adjudicate cases nor the law office’s staff is expected to be experts in all fields of genetics, nuclear physics, neuroscience, biophysics, mathematics, computer science, atmospheric chemistry, etc.
Since the case is presented to immigration officers who are not familiar with the terminology, it is critical for a successful O-1 case to present the evidence in a way that any lay person would understand.
Similarly, for us to be able to help our clients prepare the strong case that is easy to go through, we need to have a clear understanding of their research, accomplishments, and the impact they’ve had on the field of their work.
Thus, we always ask our clients at the outset of each O-1 case to provide us a summary of their accomplishments in plain language avoiding overly complex technical or scientific terminology whenever possible.
Often times, clients come to us after a previous O-1 denial or with a request for evidence from the immigration. When we start reviewing the scientist’s CV and the denial decision/request for evidence (RFE), it becomes clear that the scientist is qualified for O-1 visa but presentation of evidence in the case was poor, the cover letter submitted in the case did not explain in clear and concise language how the eligibility criteria were met, and these were the reasons why the immigration officer was not able to arrive at the positive determination. It is unfortunate as a lot of precious time is lost and many scientists become discouraged in trying to continue their work in the U.S. As a result, the U.S. is losing a lot of talent as the most brilliant minds are leaving our country to continue their careers elsewhere where their work is appreciated and encouraged.
DOCUMENTARY EVIDENCE OF SCIENTIST’S EXTRAORDINARY ABILITIES
Mere assertions of recognition in the field will not lead to O-1 approval. Each O-1 case has to be supplemented with documentary evidence showing the individual’s extraordinary abilities in the field of endeavor.
Typical forms of evidence for O-1 visa petition include: recommendation letters from experts in the field; an advisory opinion from a peer group in the field of scientist’s endeavor; supporting letter from employer describing the scientist’s job duties, qualifications etc.; evidence of honors and awards; evidence of memberships in professional scientific organizations; evidence of being a referee for work of others; contributions to the field research; record of publications and citations; conference presentations; media reports highlighting the scientist’s achievements, evidence of high remuneration for professional services and receipt of grants to carry on research, etc.
O-1 CONSULTATION REQUIREMENT
In O-1 petition context, a written advisory opinion from a peer group (including labor organizations) or a person designated by the group with expertise in the beneficiary’s area of ability is required.
However, as we see in many cases for scientists, often times there is no recognized peer group or labor organization in the field of their work.
In absence of such group or organization, the regulations (8 CFR section 214.2(o)(5)(ii)) provide that an expert opinion from a person or persons with expertise in the area of the alien’s ability may be provided to satisfy the consultation requirement.
This expert opinion from “a person or persons with expertise in the field” is very much like the reference letters/recommendation letters from experts in the field of the alien’s extraordinary ability. In fact, one of the reference letters can satisfy the consultation requirement, as long as it addresses the nature of the work to be done and the alien’s qualifications. In addition, such letter should describe the material reviewed, and how the conclusions were reached by the affiant.
Affidavits written by recognized experts should specifically describe the beneficiary’s recognition and extraordinary abilities and achievements in factual terms and should set forth the expertise of the affiant and the manner in which the affiant acquired such information.
The letters merely asserting “major significance of beneficiary’s contributions” without more will not be given much weight. Reference letters should be written in factual terms describing specific beneficiary’s contributions. When such a letter is written by an individual with the expertise to explain the work in comprehensible language and with the credibility to opine on its importance, it facilitates a positive adjudication of the case.
It is important to note that letters from current/former employers, co-workers, supervisors can be submitted. However, their opinions may be considered biased and may be given less weight than the opinions coming from independent/objective sources.
It is very important in an O-1 case to obtain reference letters from experts in the beneficiary’s field who can be considered unbiased and who know the beneficiary through his/her reputation in the field, professional accomplishments, and scientific advancements.
SUCCESS OF DR. Y’S CASE
In Dr. Y’s case as described above, we explained how Dr. Y meets the eligibility requirements for O-1 status in factual terms.
In order to emphasize the impact of Dr. Y’s work in the field of probiotic research, we explained the positive effects of certain probioitic strains she has identified, the mechanisms of their operation, diseases they help to prevent and treat, including gastrointestinal infections, hospital-acquired infections that are not treated by antibiotics, and frequent infections common to newborn babies, and percentage of population these diseases affect.
In support of O-1 petition for Dr. Y, we submitted extensive documentation substantiating Dr. Y’s extraordinary abilities in the field of probiotic research, including evidence of nationally and internationally recognized awards of excellence and certificates of achievement, evidence of membership in internationally recognized professional associations, newspaper articles featuring Dr. Y’s scientific contributions, Expert Opinion Letters from individuals with recognition in the field of probiotic research, Dr. Y’s publications in professional scientific journals along with citation record, Dr. Y’s conference presentations, and evidence that Dr. Y has served as a peer reviewer.
The case was processed at the California Service Center and was approved in 9 days without any requests for additional evidence!
Dr. Y has already started working for the biotech company carrying on her important research developing therapeutics that will continue benefitting the community in the years to come.
The client was so pleased with the results of our hard work and has already started preparation of her employment-based green card application with a National Interest Waiver case with our office.
If you need help immigrating to the U.S., our office will be happy to provide you with a free initial consultation and discuss the options available to you.