U.S. Citizenship and Immigration Services adjudicators may soon change how they consider comparable evidence to prove extraordinary ability for O-1 visa hopefuls, but attorneys say forcing petitioners to first show why other criteria aren't applicable to foreign nationals' careers is unnecessary and burdensome.
Under draft policy guidance unveiled in late January, USCIS is aiming to shake up how its adjudicators weigh "comparable evidence" when reviewing petitions for O-1 visas, which are for foreign nationals with extraordinary abilities in athletics, education, business, the sciences or the arts.
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But other attorneys expressed frustration with the draft memo's decision to link the ability to submit additional evidence with having to prove that certain criteria don't apply to a foreign national's job.
"It's very cyclical reasoning for the adjudicator to follow," said Ian Macdonald of Greenberg Traurig LLP. "Because initially, a company is going to have to show that a particular criterion does not apply, and then a company's going to have to prove that the evidence submitted is nonetheless comparable to that criteria."