Employers are experiencing incredible challenges recruiting for all types of jobs. Recruiting for that special “make or break” position – often for a C-suite, technology innovator, or creative – has always been tough. U.S. employers sometimes find that the best person for the “unicorn” job is a foreign national.
Work visa options for this critical hire are limited. One option that is available without a lottery, special program, or requiring the person to have worked for an affiliate company outside the U.S. is the O-1. Reserved for those with “extraordinary ability” in science, education, business, or athletics (O-1A), or “distinction” in the arts (O-1B), it is specifically suited to someone who can transform your organization if the government will approve the application.
This can be a big “if.” In particular, the criteria for O-1A are geared toward academia and have been read narrowly. This is the problem the White House addressed in its January 21, 2022, Policy Alert, signaling a more flexible and realistic approach to this visa.
The guidance clarifies a number of technical points that only immigration lawyers can become excited about. It also offers some more substantive guidance that should help employers secure the talent they need when they need it.
Specific Examples and Guidance
The guidance includes an appendix providing illustrative examples of each criterion that can demonstrate extraordinary ability for an O-1A, with emphasis on how a STEM professional could meet each one. For example, in what situations a Ph.D. scholarship or dissertation award might meet the criterion “nationally or internationally recognized prizes or awards.”
Comparable Evidence
If a criterion does not readily apply to the specific field of expertise being demonstrated, the guidance clarifies that an applicant may use “comparable evidence” as a substitute on a criterion-by-criterion basis. This is helpful because the rule was often interpreted to mean that the only situation in which comparable evidence could be presented was if all the listed criteria did not apply.
For example, one criterion is the publication of scholarly articles. If such publications are not part of the job description, the guidance suggests that a presentation at a major trade show might be considered comparable evidence, a much-needed nod to private sector reality.
Area of Extraordinary Ability
The guidance also addresses the transition to a new occupation. The classic example is an athlete who is becoming a coach. Because the regulations require that the employee comes to the U.S. to continue to work in the “area of extraordinary ability,” such applications were routinely denied unless the former athlete could show an established record of coaching achievements.
The updated guidance interprets the term “field” and “area of extraordinary ability” to include multiple related occupations that involve shared skillsets, knowledge, or expertise and provides helpful discussion of this point.
We welcome this recognition of what extraordinary ability looks like in the modern job market.
