UNDERSTANDING THE PHILOSOPHICAL APPROACH TO O-1 VISA PETITIONS

Hi there! I'm Sherrod Seward, one of the lead intake attorneys and directors at Innovative Immigration Law and Shared Sports Visas. Today, I want to share some insights on a more theoretical and philosophical approach to creating O-1 visa petitions. We often assist other attorneys with visa applications and participate in groups where questions about O-1, EB-1A, and P-1 visas arise. We're always glad to help, but there's one topic I want to address publicly to benefit the industry and increase approval rates for O-1 extraordinary ability visas.

The Challenge With Legalese In O-1 Petitions

Sometimes, we consult for attorneys who don't specialize in O-1 visas. These attorneys might be more familiar with family-based immigration or removal defense, where they're used to arguing cases with lots of legal jargon and case law references. However, O-1 visa petitions are different. The criteria for these visas are more subjective, and USCIS adjudicates them with a level of objectivity that makes heavy legal arguments less effective.

Understanding O-1 Visa Criteria

For those unfamiliar, the O-1 visa has about six or seven criteria (depending on whether you're applying for O-1A or O-1B), and you need to prove at least three. These criteria are subjective, and USCIS evaluates them accordingly. This subjectivity means that relying heavily on legal holdings and case law often doesn't carry much weight with USCIS. The agency might disregard extensive legal arguments if they don't align with its internal standards and interpretations.

Why Case Law Falls Short

In many situations, attorneys spend a lot of time finding and citing case law to support their clients' eligibility for O-1 visas. However, USCIS can easily dismiss these arguments, especially since there's limited litigation on O-1 visa denials. The subjective nature of the eligibility criteria makes it difficult to draw direct parallels between different cases, even when they seem similar. For example, using a national team coach's success as a precedent might help in some situations but can be easily differentiated by USCIS based on subtle differences.

Focusing On Common Sense And Context

Given these challenges, I advocate for a different approach: making straightforward, tangible arguments supported by context and evidence rather than legal jargon. When drafting O-1 petitions, it's more effective to use common sense arguments and provide ample supporting documents. This method makes it easier for the adjudicator to understand the merits of the case without getting bogged down in complex legal reasoning.

Practical Tips For O-1 Visa Petitions

The P-1 visa caters specifically to athletes and entertainers participating in pre-arranged competitions. It's ideal for poker players whose primary focus is:

Provide Ample Context

When you argue for a client's eligibility, focus on providing context that shows their extraordinary ability. Gather expert opinion letters and detailed explanations of the client's achievements. These documents should explain why the contributions are important, making it easy for the adjudicator to grasp their significance.

Avoid Overloading With Case Law

While case law can sometimes be helpful, it's often not worth the effort to find and cite numerous legal precedents. Instead, use the time to gather more concrete evidence and craft compelling, straightforward arguments. The goal is to create a petition that leaves little room for subjective denial by USCIS.

Use Tangible Evidence 

Supporting documents such as awards, publications, and media coverage are invaluable. These pieces of evidence should be clearly linked to the criteria being argued. For example, if the client has received a major award, include articles and testimonials that highlight the award's prestige and relevance to the field.

Emphasize Clear And Direct Arguments

Your petition should tell a clear story. Avoid overcomplicating it with excessive legal jargon. Explain why the client meets the criteria in simple terms, backed by strong evidence. This approach not only makes it easier for USCIS to approve the petition but also builds a stronger record if the case ever goes to court.

Make Your Way Into The O-1 Visa

In summary, when it comes to O-1 visa petitions, less is more with legal arguments. Focus on common sense, tangible evidence, and clear, direct arguments. This strategy not only increases the chances of approval but also creates a stronger, more understandable case record. I hope you find this approach helpful and that it brings more success to your O-1 visa petitions.

Thanks for reading, and feel free to reach out if you have any questions or need further assistance with your immigration cases.