This week the United States Citizenship and Immigration Service (USCIS) issued a Draft Policy Memo addressing the comparable evidence provision for O nonimmigrant visas. The Draft Memo indicates that adjudicators can take a “more flexible” approach to their review of other comparable evidence and need not accept such evidence only where the petitioner has established that the majority of the listed criteria do not readily apply to the beneficiary’s occupation. Rather, the Draft Memo advises adjudicators that the comparable evidence provision was considered as a “catch-all” criterion to allow for additional evidence to be considered when the other enumerated criteria do not readily apply “in whole or in part” when evaluating a beneficiary’s eligibility.
The Draft Memo further clarifies that the the best interpretation of the regulatory language, as a matter of policy, is to consider comparable evidence “on a criterion-by-criterion basis.” Thus, adjudicators are instructed to consider evidence of equal significance demonstrating the beneficiary’s extraordinary ability when one or more of the listed criteria do not readily apply to the beneficiary’s occupation. Thus, while petitioners must still show that any of the particular O-1 criteria do not apply before submitting comparable evidence, they need not demonstrate that the majority of the criteria do not apply.
The Draft Memo also reiterates that adjudicators should use both a quantitative and qualitative approach when assessing whether the evidence submitted demonstrates the beneficiary’s extraordinary ability.
In addition to the Draft Memo, USCIS has also issued a revised Draft RFE Template. Comments on the Draft Memo and Draft RFE Template are due by February 22, 2016.