It has now become an increasingly common trend for the United States Citizenship and Immigration Services (USCIS) to issue Requests for Evidence (RFEs) for documentation supporting the O-1 extraordinary ability criteria. No matter how eligible you may be, failure to provide a strong argument as a response to your O-1 visa RFE may result in denial.
According to the USCIS latest data, during the first three quarters of 2019, the RFE rate for the O-1 visa was 26.8%, the highest since 2015. Judging by the trend in the past five years, it is of utmost importance for petitioners and beneficiaries of the O-1 visa to understand the common scenarios that cause RFEs and how best to avoid it or counterpoint the request with a well-prepared and convincing response.
What is an O-1 Visa?
The O-1 classification is a nonimmigrant visa designed for individuals who possess extraordinary ability in various fields of human endeavor. It is open to highly skilled professionals in business, arts, science, or athletics, as well as those in the motion picture and television industry. The O-1 is sometimes referred to as the most prestigious nonimmigrant visa because it has higher requirements and offers numerous benefits compared to other categories and only available to those who can hold their own as experts in their field.
What is an RFE?
A Request for Evidence (RFE) is an inquiry that the USCIS sends when there is a lack of documentation or supporting evidence in a visa petition. In the course of processing a visa petition, if the USCIS comes across any claim that is not well-supported or not in line with the standard required, an RFE will be issued and sent to the applicant.
Because every claim must be substantiated before a decision can be made, the immigration officer in charge of your case will have to put your application processing on hold until you have provided the requested evidence. You will be given a deadline to submit the information. Failure to do that will prolong the processing and result in further delay. An O-1 RFE may be issued for more information about the petitioner or beneficiary.
Common Reasons for an O-1 Visa RFE
The USCIS can issue an RFE for a variety of reasons. However, due to the peculiarities of the O-1 visa, most of the RFEs have to do with meeting the evidentiary criteria, documenting the itinerary, and consultations.
O-1 Visa Evidentiary Criteria: The Basis for RFEs
To prove that you qualify for the O-1 visa, you are required to provide evidence that you have received a major internationally or nationally recognized award in your field such as a Nobel Prize, Grammy, Academy Award, etc. In lieu of that, the USCIS has the following list of eight (8) evidentiary criteria, out of which you must satisfy at least three (3):
- Evidence showing that you have received a lesser nationally or internationally recognized award for excellence in your field
- Evidence of your membership in an association in your field which requires outstanding achievements for membership. Your membership of the association must have been granted by other experts
- Published material in major or professional publications or media about you and your work in the field. The publication must be about you. If others are mentioned in the same publication, your name must have equal significance.
- Evidence that your expertise has earned you the position to judge the work of other people in the field, either as a member of a panel or individually
- Evidence of your original scholarly, scientific, or business-related contributions of major significance in your field
- Evidence that you have authored scholarly articles in the field, published in professional journals or major media
- Evidence that you have been employed in an essential or critical capacity for a reputable organization or company in your field
- Evidence that your extraordinary ability allows you to command a high salary or other compensation.
In a situation where the above standards are not readily applied to you or not available in your field, you can present comparable evidence to establish your qualification. This is why many of the RFEs are issued.
Common O-1 RFEs
You may receive an RFE requesting extra documents or an explanation to clarify any of the criteria above. Some of the common RFEs are as follows:
The USCIS may deem your evidence of published material insufficient and may issue an RFE. In some cases, the RFE may argue that the published material you listed is not enough to establish that you are one of the best in the field. It may also argue that the journal(s) or newspaper(s) which published them do not qualify as major publications, which is the standard requirement.
Judging the Work of Others
You are likely to receive an RFE on this criterion if the USCIS found your evidence incompatible or insufficient. “Judging the work of other peers” can be relative and many applicants don’t have evidence that applies to the requirement readily available. This is often due to the nature of their profession and daily routine in their specialty.
In many cases, comparable evidence is accepted. For instance, a field engineer whose work revolves around equipment and machines may not have evidence for judging other people’s work compared to a university professor who assesses and judge the works of junior lecturers and postgraduate students on a regular basis. Therefore, if you use comparable evidence, there is a high chance that you will receive an RFE stating that the evidence provided was found insufficient and does not satisfy the criterion.
Original Contributions of Major Significance in Your Field
Just publishing material will not count, as that does not indicate that it has been of help to others. This criterion requires that your contribution in the field must first be proven to be original and also be of importance to other experts in the field. The USCIS would want to see evidence that the published material generated widespread public commentary among professionals in the field.
This can be in the form of support letters or testimonies from other professionals who discuss or comment on your published work or evidence that the work has been implemented by others. If these supporting documents are lacking in your claim for this criterion, you will likely receive an RFE.
Employment in a Critical or Essential Capacity
This criterion can also be broken into two steps: proving that the role you occupied was critical or essential, and proving that it was in a reputable organization. Sometimes, the USCIS may agree with you on one of the two but will want you to prove the other part further. For instance, there have been instances in which the immigration officer will accept the evidence that you indeed held a critical role in an organization but will question the distinguished nature of the organization, which may lead to an RFE.
Evidence of High Salary
This criterion requires you earn or will earn a high salary or other compensation in relation to others in the field. It is a way to prove that your extraordinary ability has placed you in a position that makes your pay higher than what is commonly granted in the field. If the USCIS is not convinced, you may get an RFE.
Membership of an Association
Not all associations will count when it comes to demonstrating your extraordinary ability. To satisfy this requirement, you need to submit evidence showing that you became a member as a result of your contributions or achievements in the field. You can provide information that establishes that those who reviewed your membership eligibility are recognized international or national experts in the field. You may also present the association’s bylaws showing that the requirements for membership have a high standard.
How to Respond to O-1 Visa RFEs
When you receive RFEs on any of the above or any other O-1 evidentiary criteria, the most important aspect is your response. It is highly recommended that you work with a specialized O-1 visa immigration attorney who has a history of success in handling RFE cases.
This is because an RFE is usually issued only once. In other words, you have only one chance to clarify your case and convince the USCIS of your eligibility for the O-1 visa. Your immigration lawyer will assess the details of the RFE and help you prepare a convincing response to argue your case. The following tips are very important when responding to an O-1 visa RFE:
Ensure You Grasp the Details of the RFE
The RFE may not be as straightforward as it appears on paper. It may contain jargon or specific language that may have several different meanings. It is important to take time to painstakingly read it through until you are sure that you understand what exactly you are being asked to provide. If there is anything that needs clarification, you will need to contact an immigration attorney or the USCIS for clarification. It is inadvisable to attempt to provide any response unless you are certain of what it requires of you.
Submit Something Rather Than Nothing
There are three ways to respond to an RFE. You can give a full response, meaning you submit all the requested evidence; you can give a partial response, meaning you only submit part of the requested evidence; or you can withdraw your petition. Submitting something may help your case, even if you don’t have access to all of the requested evidence. However, submitting nothing or withdrawing your petition will ensure your petition’s denial.
Do Not Procrastinate
While it is advisable not to rush or act rashly in responding to your O-1 RFE, it is also very risky to procrastinate. As mentioned earlier, the issuance of the RFE automatically puts your petition on hold. So, the earlier you submit your response, the faster you will receive a decision on your petition.
Moreover, your O-1 visa RFE will come with a deadline, which may be a particular date or number of days. Failure to submit on or before the deadline will further complicate the case and will likely lead to denial. If it was issued with a deadline that is listed as a number of days, you need to start counting from the date that appears on the RFE. This date is the issuance date, which may not be exactly the same as the date you received it.
Does an O-1 RFE Mean Denial?
An RFE does not mean your O-1 visa application is or will be denied. It serves as an indication that the USCIS may be willing to grant your visa request if you provide a more convincing explanation or documentation for the missing evidence.
Sometimes, it may just be an error in the information you entered in your petition or a missing item. This is why you should not panic after receiving it. Many O-1 applicants have had their visas approved after receiving RFEs.
Is an RFE The Same as a NOID?
An RFE and a NOID are two different things entirely. A NOID—or a Notice of Intent to Deny—represents a more complicated case. It is usually issued after the immigration officer has gone through your petition and felt that either you or your employer do not have the required qualification for the O-1 classification either as a beneficiary or a petitioner.
An RFE serves a way of warning you ahead of time that the chances of receiving a visa denial are much higher and that you are likely to encounter the same issue if you re-file. Again, like the RFE, it is not an automatic disqualification; you may still get an approval if you have strong evidence. Keep in mind, however, that your chances of overturning a NOID are lower compared to RFE cases.