On January 8, 2025, U.S. Citizenship and Immigration Services (USCIS) issued a key update to its Policy Manual, specifically Vol. 2, Part M, to clarify the evidentiary requirements and eligibility criteria for individuals seeking O-1 nonimmigrant visas under the extraordinary ability or achievement categories. The updated guidance aligns with President Biden’s Executive Order from October 2023, aimed at enhancing pathways for individuals working in artificial intelligence and other critical technologies. This policy update supports the United States’ effort to remain competitive globally by attracting top talent in emerging industries.
Key Updates:
- Expanded Sponsoring Entity and Evidentiary Examples
The new policy clarifies that individuals who own a separate legal entity, such as a corporation or limited liability company (LLC), may file a petition on their own behalf. Additionally, the guidance clarifies the criteria for O-1A applicants for those working in the tech industry, including emerging fields such as AI. It includes additional examples of evidence that may be submitted by U.S. government agencies to support O-1 petitions for experts in these sectors. This makes it more accessible for applicants with extraordinary abilities in high-demand technological fields to demonstrate they meet the visa’s stringent requirements, which has long been a reason for O-1 denials – lack of strong evidence.
- Broadened Interpretation of Related Occupations
Another obstacle for many professionals in emerging fields has been changes to their occupation within their field, which can be commonplace as innovation often creates new roles that didn’t previously exist. Importantly, USCIS has clarified that the term “field” for O-1 visa eligibility can encompass multiple related occupations that share similar skills, knowledge, or expertise. Additionally, the phrase “area of extraordinary ability” will be interpreted broadly to include not only the specific occupation in which the individual has received acclaim, but also other related occupations that require similar abilities or expertise.
- Clarified O-1 Extensions
Finally, the guidance further clarifies the circumstances under which USCIS may limit an O-1 extension of stay to one year, which may impact those with short-term or project-specific roles. A three-year extension request may now include instances where a beneficiary’s employment involves different activities, like “continuing a different phase or trial for the same research.” This update will allow for greater flexibility in extending the stay of an O-1 beneficiary for a three-year period when their employment involves a new phase, events, or activities.
Who Will Benefit?
At first glance, the flexibility offered with this guidance may be particularly beneficial for entrepreneurs, startup founders, and self-employed individuals working in areas of extraordinary ability. The ability for entrepreneurs or self-employed individuals to utilize their separate legal entity to sponsor their O-1 is attractive, since the O-1 itself is not a self-sponsored visa.
The broadening of the term “field” to allow occupational changes to related roles reflects common and natural career paths of those working in emerging technologies like artificial intelligence, robotics, and other cutting-edge STEM fields. This may benefit individuals transitioning roles or specialties within their area of extraordinary ability to demonstrate their eligibility.
The clarification of O-1 extension circumstances can also benefit those working in research and development as their projects progress and extend to subsequent phases, for example, this may benefit researchers and professionals in fields such as biotechnology, genomics, cybersecurity, environmental technology and clean energy, aerospace, advanced manufacturing and materials science, telecommunications and 5G technology, biomedical engineering, or computational neuroscience.
If you are an O-1 visa holder, are considering applying, or are evaluating an employee for sponsorship, this updated guidance could open new doors or streamline your application process. It is essential to consult with an immigration attorney to ensure your petition reflects the latest standards.
If you are interested in learning more about whether an O-1 may be right for you or your employee, please reach out to schedule a consultation with Klasko’s specialized EB-1/NIW/O1 team.
Please contact your Klasko Law attorney with any questions regarding this client alert.
The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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