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Chapter 8 - Adjudication

Officers must carefully review each Petition for a Nonimmigrant Worker (Form I-129) to determine whether the petitioner has established eligibility based on the applicable requirements for the type of O classification being sought. Officers must apply a “preponderance of the evidence” standard when evaluating eligibility for the O nonimmigrant classification.​[1] The burden of proving eligibility for the benefit sought rests entirely with the petitioner.[2]

A. Decision

Approvals

If the petitioner properly filed the petition and the officer is satisfied that the petitioner has met the required eligibility standards, the officer approves the petition. The approval period must not exceed the maximum period of stay allowed.[3] Furthermore, USCIS should not deny a petition on the basis of the approval of a permanent labor certification or the filing of a preference petition for the O-1 beneficiary.[4]

The table below provides a list of the classifications for nonimmigrant aliens of extraordinary ability or achievement, those accompanying and assisting the principal alien’s artistic or athletic performance, and dependents.

Classes of Beneficiaries and Corresponding Codes of Admission

Beneficiary

Code of Admission

Alien of extraordinary ability in the sciences, education, business, or athletics (principal)

O-1A

Alien of extraordinary ability in the arts (principal)

O-1B

Alien of extraordinary achievement in the motion picture or television industry (principal)

O-1B

Accompanying alien who is coming to the United States to assist in the performance of certain O-1s

O-2

Spouse or child of an O-1 or O-2

O-3

Once USCIS approves the petition, USCIS notifies the petitioner of the approval using a Notice of Action (Form I-797).[5]

Denials

If the petitioner does not meet the eligibility requirements, the officer denies the petition.[6] If the officer denies the petition, he or she must notify the petitioner of the denial in writing. The written decision must explain why USCIS denied the petition and must include information about appeal rights and the opportunity to file a motion to reopen or reconsider.[7] The office that issued the decision has jurisdiction over any motion and the Administrative Appeals Office (AAO) has jurisdiction over any appeal.[8]

B. Revocation

USCIS may revoke an approved petition at any time, even after the validity of the petition has expired. USCIS automatically revokes the petition if the petitioner ceases to exist or files a written withdrawal of the petition.[9]

USCIS may also revoke an O petition approval on notice. USCIS sends the petitioner a Notice of Intent to Revoke (NOIR) if it is determined that:

  • The beneficiary is no longer employed by the petitioner in the capacity specified in the petition;

  • The statement of facts contained in the petition was not true and correct;

  • The petitioner violated the terms and conditions of the approved petition;

  • The petitioner violated the statute or regulations; or

  • The approval of the petition violated the regulations or involved gross error.[10]

The NOIR must contain a detailed statement of the grounds for the revocation and the period allowed for the petitioner’s rebuttal. USCIS considers all relevant evidence presented in deciding whether to revoke the petition.

The petitioner may appeal the decision to revoke a petition to the AAO if USCIS revoked the petition on notice. Petitioners may not appeal an automatic revocation.[11]

Footnotes


1. [^] See U.S. v. Cardozo-Fonseca (PDF)​,​ 480 U.S. 421 (1987) (defining “more likely than not” as a greater than 50 percent probability of something occurring). See ​Matter of ​Chawathe (PDF)​, 25 ​I​&N​ Dec. 369, 376 (​AAO​ 2010) (citing ​Matter of E-M​- (PDF), 20 ​I&N​ Dec. 77, 79-80 (Comm. 1989)).​

2. [^] See​ Matter of ​Brantigan (PDF)​, ​11 ​I&N​ Dec. 493 (BIA 1966).​

3. [^] See Chapter 9, Admissions, Extensions of Stay, and Changes of Status [2 USCIS-PM M.9].

4. [^] See 8 CFR 214.2(o)(13).

5. [^] See 8 CFR 103.2(b)(19).

6. [^] See 8 CFR 103.2(b)(8).

7. [^] See 8 CFR 103.2(b)(19). See 8 CFR 103.3. See 8 CFR 214.2(o)(7).

8. [^] See 8 CFR 103.3(a)(2).

9. [^] See 8 CFR 214.2(o)(8)(ii). See Chapter 9, Admission, Extension of Stay, Change of Status, and Change of Employer [2 USCIS-PM M.9].

10. [^] See 8 CFR 214.2(o)(8)(iii).

11. [^] See 8 CFR 214.2(o)(9)(ii).

Resources

Legal Authorities

8 CFR 103.2(b)(19) - Notification

8 CFR 103.2(b)(8) - Request for Evidence

8 CFR 103.3 - Denials, appeals, and precedent decisions

8 CFR 214.2(o) - Special requirements for admission, extension, and maintenance of status (aliens of extraordinary ability or achievement)

8 CFR 214.2(o)(7) - Notification of Decision

8 CFR 214.2(o)(8)(ii) - Automatic Revocation

8 CFR 214.2(o)(9)(ii) - Appeal of Revocation

INA 101(a)(15)(O) - Extraordinary ability in arts or athletics

INA 101(a)(46) - Definition of “extraordinary ability” in the arts

INA 214(c) - Admission of nonimmigrants

Appendices

No appendices available at this time.

Updates

POLICY ALERT - O Nonimmigrant Visa Classification

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to update and consolidate guidance related to O nonimmigrant classifications.

Read More
POLICY ALERT - Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements Final Rule

U.S. Citizenship and Immigration Services (USCIS) is revising its policy guidance in the USCIS Policy Manual to align with the Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements Final Rule, published in the Federal Register on August 3, 2020. This guidance becomes effective October 2, 2020. For information regarding implementation, see our litigation summary.

Read More
Technical Update - Moving the Adjudicator’s Field Manual Content into the USCIS Policy Manual

U.S. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicator’s Field Manual (AFM) content into the USCIS Policy Manual. As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. To find remaining AFM content, see the crosswalk (PDF) between the AFM and the Policy Manual.

Technical Update - Replacing the Term “Foreign National”

This technical update replaces all instances of the term “foreign national” with “alien” throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].