Immigration Lawyers Toolbox Magazine
O-1A VISA PROCESSING T
by BEN ARTERBURN, Former Consular Officer
he O-1 petition has been approved by USCIS, and all that remains is for your client to have their visa printed and pasted into their passport by the consular section abroad. The approved petition is prima facie evidence that your client qualifies for the visa class, so the consular officer should issue the visa without any issues, right?
Ben Arterburn
BArterburn@Argovisa.com
84
ILT Magazine
Unfortunately it’s not so simple. The consular visa interview could still cause a problem for your client despite having an approved petition. In my experience as a former consular officer, I saw numerous O-1 applicants refused their visas because the consular officers were not satisfied that they qualified for the visa or overcame INA section 214(b). The Foreign Affairs Manual (FAM) instructs consular officers to confirm that the facts of the petition are true, and it places the burden of establishing eligibility for the visa class on the applicant. It explicitly calls for the consular officers to use their linguistic and cultural knowledge to spot exaggerations and misrepresentations that the adjudicators at USCIS may have missed.
Issue No . 3
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There was even one visa chief I served under who seemed to have a personal vendetta against 0-1 applicants. He ordered that all 0-1 cases be referred to him so he could measure them against his bar for “extraordinary,” which more often than not resulted in a refusal. Consular officers also take very seriously the fact that they are the first U.S. government official to interact with the visa applicant. They are well aware that a skilled immigration attorney can make any client appear extraordinary on paper, and they are keen to put the applicant to the test. It’s a relatively rare visa class for them to adjudicate, and they will take full advantage of the FAM’s mandate to confirm the applicant’s visa eligibility. There was even one visa chief I served under who seemed to have a personal vendetta against O-1 applicants. He ordered that all O-1 cases be referred to him so he could measure them against his bar for “extraordinary,” which more often than not resulted in a refusal. If the evidence of your client’s extraordinary ability is primarily from foreign language sources in their home country, rather than from English language international sources, they should be prepared for more scrutiny than they