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 of extraordinary ability or achievement, those accompanying and assisting the principal O-1 beneficiary’s artistic or athletic performance, and dependents.

Classes of Beneficiaries and Corresponding Codes of Admission

Beneficiary

Code of Admission

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

O-1A

Nonimmigrant of extraordinary ability in the arts (principal)

O-1B

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

O-1B

Accompanying person 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).

Current as of October 01, 2021