O-1 Visa Issues
Date: October 24, 2022
Generally, these inquiries are little reason for concern. The person is only asking in order to satisfy a requirement for their desired visa classification, and there are few concerns about any immigration related consequences for the organization regardless of how they choose to respond.
The O-1 nonimmigrant visa is intended for an individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated a record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements. One key requirement of the O-1 visa application process for certain classes of individuals is the “written advisory opinion,” which must come “from a peer group (including labor organizations) or a person with expertise in the beneficiary’s area of ability.”
The purpose of the advisory opinion is for a third party to weigh in on the particular qualifications and achievements of the applicant. For someone in the fields of science, education, business or athletics, that would mean showing that the person is one of the small percentage who has risen to the very top of their field. For someone in the arts, that may mean the person has a degree of skill and recognition substantially above that ordinarily encountered, such that they are prominent, renowned, leading, or well-known in the field of arts.
In fact, USCIS specifically advises petitioners to obtain the “peer group” advisory opinion. As a result, many individuals may reach out to a specific trade or professional organization which represents their field of work. For example, a professional chef would look to food industry groups, engineers to organizations representing their respective practice areas, and musicians to those organizations focused on the relevant field of music. In some cases, USCIS may ask a petitioner for a letter from a specific organization which they know of from prior applications.
There is no obligation for any organization to provide the requested “opinion.” The individual may always look elsewhere for a supporting organization, or provide recommendation letters from individuals where no peer group is available. Some organizations will only provide recommendations to members, and others may support an application if the person has truly notable experience or skills.
If there is an interest in responding, an initial question to ask is whether the organization is the correct “peer” organization to issue such a consultation letter. A non-profit which advances the interests of the kitchen industry is not the proper organization for an up and coming chef. However, a peer group of yoga professionals could properly offer an opinion on a master yogi from abroad.
Before agreeing to provide any letter, an organization should also consider the following questions:
- Is the person a member of your organization?
- Are they known to others within the organization?
- What are their credential and professional background?
- Do they have any notable achievements or award?
- Have they worked for a prestigious organization or company?
- Based on the above, are we able to provide a meaningful opinion letter?
Some organizations limit their support to members of the organizations. Others will be sparing; offering an opinion, only where the person’s credentials are meaningful to them. For example, a chef who has worked at numerous acclaimed restaurants in high level positions, or an author and speaker who is known in the field, but does not necessarily have recognition more generally, may both be cases meriting a favorable opinion. In either case, a letter is of little value unless it is favorable.
A favorable letter would normally describe the individual's achievements in the field of endeavor, and any specific special skills or abilities they may have. You may also be asked to give an opinion on whether the job being offered requires the services of a person of extraordinary ability. More simply, the organization may state that it has “no objection” to the individual being granted an O-1 visa based on the credentials provided.
Organizations have little reason to be concerned about any consequences to them as a result of providing a supporting letter. Though they should be mindful that by doing so may beget more requests, which may ultimately make them the organization of choice for applicants and maybe even USCIS. Thus, it makes sense to develop minimum requirements for when such letters may be given, which would include who is eligible, from the organizations’ standpoint, to merit support. It is also important to ensure that others in the organization are aware of the policy, so that letters come from a single source.
In sum, the O-1 recommendation letter can be an important component of successful O-1 visa applications, and serves a valuable purpose in brining persons with real expertise to the U.S. to share their knowledge and benefit the field of endeavor. That may very well benefit the organization and its mission, which may, in turn, make that “opinion” all that more worthwhile.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.