In this case an appeal was made to the Administrative Appeals Office (“AAO”) from the denial of an O-1 visa to the beneficiary of a petition by a medical university. The beneficiary, a native and a citizen of Japan, was a highly qualified physician who had received extensive training and performed extensive research in the fields of hematology, oncology, and stem cell transplantation. He had attended four top medical schools in the United States and Japan to complete his training and qualifications. He had also authored twenty-eight articles for professional journal publications or presentations at professional conferences. The petitioner sought to employ the beneficiary temporarily in the United States for a period of three years as an Assistant Professor of Medicine in the Division of Immunotherapy at an annual salary of $90,000. The director of the INS service center (“director”) denied the petition, in part because he determined that the evidence is insufficient to establish that the position actually required a person of extraordinary ability.
The O-1 visa is a temporary work visa available to foreign nationals with extraordinary ability in the sciences, arts, education, business or athletics, which have been demonstrated by sustained national or international acclaim. The INS interprets the statute very broadly to encompass most fields of creative endeavor. For example, chefs, carpenters and lecturers can all obtain O-1 visas. So, although the person entering the United States must be coming to work in their field of ability, but the position need not require the services of a person of extraordinary ability. For instance, while the position of a chef may not require the services of a person of extraordinary ability, the person who wants to fill such a position through O-1 classification must be a person of extraordinary ability and “at the very top” of his field pursuant to 8 C.F.R. 214.2(o)(3)(ii). The criteria for O-1 classification of an alien with extraordinary ability is set out in 8 C.F.R. 214.2(o)(3)(ii) and 8 C.F.R. 214.2(o)(3)(iii).
Here the director denied the petition, in part because he determined that the evidence is insufficient to establish that the position actually required a person of extraordinary ability. This was the incorrect legal standard and the AAO reversed the director’s decision. The AAO, in its opinion, found that the INS agreed that “there is no statutory support for the requirement that an O-1 alien must be coming to the United States to perform services requiring an alien of O-1 caliber.” So, the position need not require the services of a person of extraordinary ability, but the person who wants to fill such a position through O-1 classification must be a person of extraordinary ability and “at the very top” of his field. In this case the petitioner was at the top of his field, and therefore the appeal was sustained and the petition was approved.
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