As outlined and explained in our previous article (published by the American Lawyers Association and captioned the O-1 Solution) the O-1 visa category abides by three different standards, the most exacting one being reserved for individuals displaying Extraordinary Ability in the field “athletics”. We immediately opined that had the horse trainer’s case been prepared, documented and filed under this category, the O-1A category, it would have been approved. Nonimmigrant visa petitions filed under the O-1A category must establish that the O-1 candidate as residing at the very top of his or her field or in other words belonging to a distinguished and narrow elite of experts.
Instead, the horse trainer’s Petition was filed under the less demanding category requesting the trainer be classified as an O-IB, an individual extraordinary ability in the “arts”. On behalf of the USCIS, the Director denied the trainer’s petition for classification as an O-1B finding that the petitioner failed to establish that the O-1B candidate qualified as a horse trainer of extraordinary ability in the “arts”. The USCIS did not question the trainer’s prominence in the field, rather the Director correctly found that the trainer had failed to establish that the he is primarily involved in a creative activity or endeavor.
For purposes of the O-1B classification, “arts” includes any field of creative activity or endeavor including fine arts, visual arts, culinary arts, and performing arts. While the law specifically includes animal trainers as an example within the field of the arts, the immigration law did not contemplate all types of animal training such as horses engaged in competitive racing. Thus, the nature of the intended activity is crucial in determining whether the visa applicant is entering the United States to provide services in the “arts” to allow for the USCIS approval of an O-1B visa classification. While the horse trainer who consulted with us, undoubtedly, desires to come to the United States to provide the finest training and care to esteemed thoroughbred horses, the activity simply does not fall into the field of “arts” and the USCIS Director could not reasonably conclude that the trainer could be included among individuals engaged in the arts or a field of creative activity.
As seen in this case, the immigration law clearly prescribes different evidentiary criteria and standards of review for the O-1 classification. The good news is that the trainer was able to have his case refiled pursuant to the correct category and, using the USCIS Premium Processing program, his O-1A classification as an athlete of extraordinary ability was approved in two-weeks.
Keil Hackley is the Senior Partner of Hackley & Robertson, P.A., a U.S. immigration law firm dedicated to helping individuals and companies navigate United States immigration law. With a team that includes former Immigration and Naturalization Service (INS) attorneys and investigators, Hackley & Robertson is skilled and focused on helping clients with their immigration law cases. Based in Fort Lauderdale, Florida, Hackley & Robertson works with both companies and individuals. The information contained in the Blog does not constitute legal advice and should not be relied upon as such. If you have questions about immigration law in the United States or about your legal status, we can be reached at 954-349-4994.
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