O-1 Visas in Architecture - Case Studies

This article shares legal information about the United States O-1 visa for architects with extraordinary abilities in the fields of science and art. Specifically, it profiles recent architecture-related O-1 visa appeal decisions from the U.S. Administrative Appeals Office (AAO) in order to explain the relevant substantive criteria for an architect O-1 visa. I've linked all cited materials to primary sources so you can read them directly if you would like.

O-1 Visas Only Apply to Extraordinary Architects

Before diving into the cases, let's first summarize the legal authority for the O-1 visa. The O-1 is an achievement-based visa for professionals in the fields of science, art, education, business, and athletics. O-1 visa petitions require extensive supporting evidence of specific extraordinary achievements in the field. A typical O-1 petition is accompanied by several hundred pages of evidence and must meet the specific legal criteria.

The Immigration Reform and Control Act (IRCA) provides an O-1 nonimmigrant work visa classification for an alien who: 

8 U.S.C. § 1101(a)(15)(O).

The standard for the O-1 visa is extremely high in architecture or any profession. See e.g., 8 C.F.R. § 214.2(o)(3)(ii)("Extraordinary ability in the field of science, education, business, or athletics means a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor."). AAO opinions repeatedly emphasize this point:

AAO Mar. 11, 2011 quoting Memorandum, Lawrence Weinig, Acting Asst. Comm'r., INS, "Policy Guidelines for the Adjudication of O and P Petitions" (June 25, 1992). 

Within the O-1 visa classification, there are two different subclassifications based on the beneficiary's field of expertise. The O-1A visa is for science, business, and education (also athletics, though that will not apply to architects). The O-1B visa is for the arts, including motion pictures. There are several differences between the O-1A and O-1B visas. However, the primary difference is that the two subclassifications use a different set of criteria to evaluate eligibility.

Considering architecture's position at the intersection of art and science, there are a striking lack of O-1 appeals in the field. There are just two reported O-1A visa appeal cases in the architecture field. Below I discuss one of these cases, which involved an architect responsible for the virtual recreation of the ancient city of Persepolis.

Even more surprising is the complete lack of even a single appeal of an O-1B artist visa for an architect since at least 2005. Below I reference two O-1B artist visa cases during this time that are at least tangentially related to architecture: a British restorer who worked on restoring old homes and an interior designer. Both of these O-1B appeals were unsuccessful, although that is not surprising based on the facts in those particular cases.

O-1A (Science, Business, or Education) Visas for Architects

The most recent O-1A architect visa case is AAO Jun. 23, 2009. This case involved an architectural firm's petition on behalf of a German project architect best known for "an ongoing project dedicated to the virtual reconstruction of the ancient Persian city of Persepolis." Id. at p. 3. An attorney represented the petitioner. 

There are two ways to meet the substantive criteria for an O-1A visa:

8 C.F.R. § 214.2 (o)(3)(iii)(A)-(B).

USCIS initially denied the architect's petition after "concluding that the petitioner failed to establish that the beneficiary has received sustained national or international acclaim and is one of the small percentage who has risen to the very top of his field of endeavor." AAO Jun. 23, 2009 at p. 2.

In this case, the beneficiary did not receive a major, internationally recognized award. Instead, the AAO addressed each of the 8 so-called O-1A evidentiary criteria. Very few O-1A petitions are granted on the basis of the receipt of a major award. The vast majority of petitions will rely on satisfying at least 3 of the 8 evidentiary criteria.

O-1A Evidentiary Criterion 1 of 8: Awards

The first evidentiary criterion for the O-1A visa requires proof of "[d]ocumentation of the alien's receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor[.]" 8 C.F.R. § 214.2(o)(3)(iii)(B)(1). To qualify for this criterion, an award must relate to excellence in a beneficiary's field and be nationally or internationally recognized. See e.g., Matter of T-D- Corp., ID# 313325 (AAO May 12, 2017)("Without evidence reflecting that the award is nationally or internationally recognized, it cannot serve to meet this criterion.")

The AAO in AAO Jun. 23, 2009 determined that the architect failed to meet this criterion. The petition's primary shortcoming appears to have been lack of detail. The petition alluded to awards and prizes without providing specific evidence to satisfy the criterion. The AAO noted that "[t]he beneficiary's resume also indicates that he 'participated in several public and restricted competitions and presentations,' but does not mention his receipt of any nationally or internationally recognized prize or award in the field of architecture." Id. at p. 4. The beneficiary's petition also failed to provide a translation of a German magazine called "Wettbewerbe Akeull" that the petitioner claimed was associated with some kind of award. The AAO refused to consider the evidence because the petition omitted the certification required under 8 C.F.R. § 103.2(b)(3) (Note: missing or insufficient translations are a sadly common issue in many AAO appeals across many industries).

O-1A Evidentiary Criterion 2 of 8: Membership

The second evidentiary criterion for the O-1A visa requires "[d]ocumentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields[.]" 8 C.F.R. § 214.2(o)(3)(iii)(B)(2). To satisfy this criterion, a petition must submit evidence of membership requirements establishing that outstanding achievement in the field is required of members. See e.g., AAO Jan. 17, 2006 ("The petitioner submitted no evidence of the membership requirements of this organization and submits no evidence that outstanding achievement in the field is a requirement for membership."). Cases have routinely held that neither specialized licensure nor general professional society membership will satisfy this criterion. See e.g., AAO May 12, 1999 ("The petitioner contended that the beneficiary's licensure and membership in [professional] societies proved outstanding achievements [...]. Each licensure, specialty, and sub-specialty includes every qualified practitioner without a judgement of experts that any has demonstrated outstanding achievements equal to the small percentage at the top of the field[.]").

The petitioner in AAO Jun. 23, 2009 did not attempt to provide any evidence of membership to meet this criterion in either the initial materials or in response to a USCIS request for evidence (RFE). The AAO therefore did not discuss this criterion.

O-1A Evidentiary Criterion 3 of 8: Published Material

The third criterion for the O-1A visa requires evidence of "[p]ublished material in professional or major trade publications or major media about the alien, relating to the alien's work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation[.]" 8 C.F.R. § 214.2(o)(3)(iii)(B)(3).

Published material must be about the beneficiary and must specifically discuss the beneficiary's work. See e.g., AAO Jul. 30, 2014 ("An article that is not about the beneficiary does not meet this regulatory criterion.")(citations omitted); AAO Aug. 11, 2010 ("Regarding the scientific articles that merely reference the petitioner's published work, [...] [t]he submitted citations to the beneficiary's work do not discuss the merits of his work, his standing in the field, any significant impact that his work has had on the field, or any other aspects of his work so as to be considered published material about the beneficiary as required by this criterion."). A beneficiary's published materials about himself or herself will not satisfy this criterion. See e.g., AAO May 12, 1999 ("[An affiant] asserted that the beneficiary was extensively reviewed in the literature, but cited no published material [...]. Probably, he referred to the beneficiary's own articles."). Finally, to meet this criterion, the published material must appear in major media, which requires specific and credible evidence of distribution. See e.g., AAO Feb. 2, 2011 ("Some newspapers, such as the New York Times, nominally serve a particular locality but would qualify as major media because of significant national distribution, unlike small local community papers. Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For, example, an article that appears in the Washington Post, but in a section that is distributed only in Fairfax County, Virginia, for instance, cannot serve to spread an individual's reputation outside that county.").

Initially, many of the publications the architecture firm in AAO Jun. 23, 2009 relied upon were missing certified translations and the AAO therefore did not consider them. While this may have harmed the petition overall, there was another threshold evidentiary issue. The petitioner failed to provide evidence of distribution for various publications to prove that any of media was "major." Specifically, the petition appears to have offered only a conclusory statement from the petitioner's counsel that "[t]hese publications show international distribution and audiences." Id. at p. 7. The AAO wrote, "the petitioner's assertion that the articles appeared in publications with 'international distribution and audiences' is insufficient to establish that the articles should be considered 'major media,' as the petitioner submitted no concrete evidence to support its claims." Id. at p. 8.

Additionally, the articles mainly related to the beneficiary's involvement in the virtual reconstruction of Persepolis, which USCIS deemed irrelevant because the project was not an architectural achievement. As the AAO explained, "[t]he beneficiary applied his education, training and skills as an architect to perform the virtual reconstruction work, although it does not appear that the Persepolis 3D project required him to perform the full range of duties normally performed by an architect employed in a more traditional capacity." Id. at p. 8. Even though the AAO ultimately agreed with the petitioner that the evidence was relevant, it concluded that "it is reasonable to expect an alien with extraordinary ability in architecture, who is coming to the United States to assume a traditional position as an architect, to submit evidence clearly relating to his achievements and recognition by his peers in the field of architecture." Id. at p. 8.

Finally, the AAO correctly observed that published materials must show a pattern of achievements based on the statute's use of a plural noun. 8 U.S.C. § 1101(a)(15)(O)("whose achievements have been recognized in the field"). Media coverage for the beneficiary's single achievement (the digital recreation of Persepolis) did not satisfy the criterion.

O-1A Evidentiary Criterion 4 of 8: Judging

The fourth evidentiary criterion for the O-1A visa requires "[e]vidence of the alien's participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought[.]" 8 C.F.R. § 214.2(o)(3)(iii)(B)(4). Judging must be in alien's field or an allied field. See e.g., Matter of T-D- Corp., ID# 313325 (AAO May 12, 2017) ("As the Petitioner has not documented that the Beneficiary judged web design or an allied field, it has not satisfied this criterion.")

The petitioner in AAO Jun. 23, 2009 did not provide any evidence to meet this criterion and therefore the AAO did not discuss this criterion.

O-1A Evidentiary Criterion 5 of 8: Original Contributions of Major Significance

The fifth evidentiary criterion for the O-1A visa requires evidence of "the alien's original scientific, scholarly, or business-related contributions of major significance in the field." 8 C.F.R. § 214.2 (o)(3)(iii)(B)(5). The contributions must be original and influence the field as  whole. See e.g., AAO Dec. 1, 2014 ("[the petitioner] does not provide any specific examples of the systems and processes developed by the beneficiary and their utilization by others in the field."); AAO Aug. 11, 2010 ("The AAO disagrees with the director's conclusion that the beneficiary's receipt of patents is sufficient to establish that the beneficiary has made an original contribution of major significance in the field. The grant of a patent demonstrates only that an invention is original. This office has previously stated that a patent is not necessarily evidence of a track record of success with some degree of influence over the field as a whole. See Matter of New York State Dep't. of Transp., 22 I&N Dec. 215, 221 n. 7, (Commr. 1998)."). This criterion requires proof of utilization within the field well beyond a beneficiary's immediate contacts. See e.g., AAO Aug. 11, 2010 (observing a recommendation that "offers no support for a finding that the beneficiary's work has been recognized beyond the scope of his current and former employers, and their circle of investors, such that it equates to an original contribution of major significance in the field.")

For this criterion, the petitioner submitted evidence that the beneficiary's Persepolis 3D project has been extensively acknowledged within his field. To support that argument, the petition included several reference letters, including one indicating that the Persepolis "serves as a vehicle to transmit news bulletins regarding the cultural heritage of Iran and its current deconstruction by the regime in Tehran." AAO Jun. 23, 2009 at p. 9-11. The petitioner also submitted information about various exhibits, demonstrations, and conference presentations of the Persepolis 3D project at various international conferences. Id.

The AAO found that the project was not an original contribution of major significance in the field of architecture. The AAO specifically noted that the beneficiary's work "followed the work of German and American architectural historians" and further explained:

Id. at p. 10.

O-1A Evidentiary Criterion 6 of 8: Scholarly Articles

The sixth criterion for the O-1A visa requires evidence of "the alien's authorship of scholarly articles in the field, in professional journals, or other major media." 8 C.F.R. § 214.2 (o)(3)(iii)(B)(6). The petitioner in AAO Jun. 23, 2009 did not submit evidence addressing this criterion and therefore the AAO did not discuss it.

O-1A Evidentiary Criterion 7 of 8: Critical Employment

The seventh criterion for the O-1A visa requires "[e]vidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation." 8 C.F.R. § 214.2 (o)(3)(iii)(B)(7).

Critical employment criterion focuses on relative importance of beneficiary's position within the context of a particular employment relationship. See e.g., AAO Aug. 11, 2010 ("The scope of this evidentiary criterion focuses on the beneficiary and the relative importance of his position within the scope of the organizations that have employed him."). Distinguished reputation means something more than respected. See e.g., AAO Feb. 21, 2006 ("While the latter article refers to the petitioning organization as a 'respected business,' the evidence is insufficient to establish that it enjoys a "distinguished reputation."). Major media is probative of a distinguished reputation. See e.g., AAO Aug. 11, 2010 ("a company which enjoys a distinguished reputation can easily provide articles in major media about the company indicating a distinguished reputation."). An entity's size and income is not synonymous with the entity's distinguished reputation but relatively small and unknown entities may have a difficult time establishing a distinguished reputation. See e.g., AAO Aug. 11, 2010 ("the petitioner also indicates that it presently has one employee and no income, and has not been able to establish the company's distinguished reputation given its current stage of development.")

Again, the petitioner's approach to this criterion indicates a focus on general recommendations and a lack of specificity regarding the criterion's requirements:

AAO Jun. 23, 2009 at p. 12.

Regarding the beneficiary's work on the Persepolis 3D project, the AAO noted that "it is unclear whether his role in the project can be considered 'employment' or whether the project itself constitutes an 'organization or establishment.'" Id. at p. 13. The beneficiary continued working full time as an architect while developing the project. Moreover, the AAO observed again that the project was removed from the direct duties of an architect. Id. On that basis, the AAO concluded that "beneficiary's role in this project alone is insufficient to establish that he meets this criterion." Id. 

O-1A Evidentiary Criterion 8 of 8: High Remuneration

The eighth and final criterion for the O-1A visa requires evidence "that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence." 8 C.F.R. § 214.2(o)(3)(iii)(B)(8).

Median wage statistics do not suffice for proving high remuneration. See e.g., AAO Aug. 11, 2010 ("the petitioner must submit evidence showing that the beneficiary's salary places him among that small percentage at the very top of the field rather than simply in the top half on a regional basis. Thus, median regional wage statistics are not an appropriate basis for comparison in determining 'significantly high' earnings in relation to others in the field."). Evidence of wage level is compared against national level, not local level. See e.g., AAO Feb. 21, 2006 ("The petitioner, however, must demonstrate that the beneficiary's salary places her at the top of her field at the national level, not simply at what her work would command at the local level.").

In support of this criteria, the petitioner offered evidence of a $45,000 annual salary and past lump sum payments for past screenings of documentaries that included the beneficiary's work. AAO Jun. 23, 2009 at p. 13. USCIS and the AAO rejected the evidence because (a) comparing a 10+ year architect's salary to entry level wages does not prove high remuneration, and (b) one-time payments for work outside the field are not a salary earned as a member of the field. Id. Specifically, the AAO wrote, "[t]he proffered salary of $45,000, while claimed to be in the upper range for an 'entry level' architect, cannot be considered high for the beneficiary, who has over a decade of professional experience" and "[t]he payments received for the airing of the documentary which included the beneficiary's work cannot be considered a salary the beneficiary earned as an architect." Id.

Overall, in denying this architect's petition, the AAO concluded and explained that:

Id. at p. 14.

Other O-1A Cases for Architects

In the only other O-1A case in the architecture field - AAO Sep. 19, 2007 - the petitioner's counsel failed to submit a proper consultation when filing on behalf of an engineering supervisor at a real estate development and architectural design firm. This case does not discuss the substantive criteria for the O-1A visa for architects. It is still worth a read, however, as a reminder of the importance of following all procedural requirements for the visa.

O-1B (Artist Visa) for Architects

Interestingly, there are no reported AAO appeals for O-1B artists visas for architects going back to 2005. The evidentiary criteria for this visa indicate that certain qualified architects may appropriately petition for O-1B visas. As with all visa cases, qualification will depend on the particular facts and evidence.

While not directly related to the field of architecture, the case of AAO Feb. 21, 2006 involved an O-1B petition for a British restorer working for an old house restoration design firm in Massachusetts. This case is worth a read for an overview of how O-1B artist visas might apply to an architect. 

As with the O-1A, the O-1B requirements provide for either single-factor qualification based on a major, international award or qualification based on evidentiary criteria (the O-1B has six evidentiary criteria):

8 C.F.R. § 214.2(o)(3)(iv)(A)-(B).

Also similar to the O-1A, very few O-1B petitions are granted on the basis of the receipt of a major award. The vast majority of petitions will rely on satisfying at least 3 of the 8 evidentiary criteria.

The petitioner in AAO Feb. 21, 2006 did not attempt to establish the first, second, or fourth evidentiary criteria:

8 C.F.R. § 214.2(o)(3)(iv)(B)(1).

8 C.F.R. § 214.2(o)(3)(iv)(B)(2).

8 C.F.R. § 214.2(o)(3)(iv)(B)(4).

Since the O-1B visa requires at least 3 of 6 evidentiary criteria, this meant that the petitioner in AAO Feb. 21, 2006 needed to satisfy each of the 3 criteria upon which they relied. The petition was not successful, unfortunately. However, a the evidence indicates the petition was a long shot.

O-1B Criterion #3 - Key Role for Distinguished Organizations

The third criterion for the O-1B visa requires "[e]vidence that the alien has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials[.]" 8 C.F.R. § 214.2(o)(3)(iv)(B)(3). Evidence must prove distinguished reputation. See e.g., Matter of A-S- LLC, ID# 1734932 (AAO Oct. 31, 2018) ("the Petitioner has not claimed or established that it or [name redacted] enjoys a distinguished reputation in the Beneficiary's field."). Also, as described above, an employer's satisfaction with work does not alone establish its "critical or essential" nature. See e.g., AAO Jun. 23, 2009.

The sole evidence presented for this criterion in AAO Feb. 21, 2006 appears to be evidence that the petitioner's owner served for 2.5 years on the Nantucket Massachusetts Historic Districts Commission and had joined the Board of Directors of the Nantucket Preservation Trust. Id. at p. 3. An article describing his participation on the board described the trust as a "respected business." USCIS determined that this evidence established the relevant criteria but AAO reversed based on a lack of evidence indicating that the trust had a distinguished reputation as the regulation requires. Id. Specifically, AAO explained that "[w]hile the latter article refers to the petitioning organization as a 'respected business,' the evidence is insufficient to establish that it enjoys a "distinguished reputation." Id.

O-1B Criterion #5 - Significant Recognition from Experts

The fifth O-1B criterion requires "[e]vidence that the alien has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged. Such testimonials must be in a form which clearly indicates the author's authority, expertise, and knowledge of the alien's achievements[.]" 8 C.F.R. § 214.2(o)(3)(iv)(B)(5). Recognition must relate to achievements, not innate talent. See e.g., Matter of A-S- LLC, ID# 1734932 (AAO Oct. 31, 2018)("The letters primarily discuss the Beneficiary's innate talent and artistry rather than her achievements as an animation designer."). Likewise, evidence of recognition should come from outside a beneficiary or petitioner's immediate circle of contacts. See e.g., Id. ("We also note that all of the letters submitted are from the Beneficiary's own current and former colleagues and teachers, and therefore do not demonstrate significant recognition outside of that circle.")

In support of this criterion, the petitioner in AAO Feb. 21, 2006 submitted a series of recommendation letters from various individuals. Id. at pp. 4-5. The AAO's primary issue with the evidence was that it focused too much on general praise of the beneficiary without "identify[ing] any specific achievements of the beneficiary that would indicate she has achieved acclaim in the field of restoration." Id. at p. 5. The criterion requires recognition for achievements and recognition for training, education, or general experience will not suffice. The AAO rejected the petitioner's recommendation letters for that reason.

Criterion #6 - High Relative Compensation

The sixth O-1B criterion requires "[e]vidence that the alien has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence[.]" 8 C.F.R. § 214.2(o)(3)(iv)(B)(6).

The petition in AAO Feb. 21, 2006 included statements from two local affiants who confirmed the amounts they would pay to the business employing the beneficiary. Id. at pp. 5-6. The petitioner specified it would pay the beneficiary $30.00 per hour, which it claimed was a high salary compared to a $20.26 per hour prevailing local wage rate from the Massachusetts Division of Employment and Training. Id. at p. 5. USCIS and the AAO rejected the petitioner's argument that the beneficiary would be highly compensated. The AAO noted that "[t]he petitioner [...] must demonstrate that the beneficiary's salary places her at the top of her field at the national level, not simply at what her work would command at the local level. Local prevailing wage figures do not meet this standard." Id. at p. 6.

Finally, even though the beneficiary did not meet the evidentiary criteria, there was also an issue with the contract the petitioner provided to USCIS. Specifically: 

Id. at p. 6.

Overall, this petition appears to have been a relatively weak O-1B case. That said, there are many other cases where architects can meet these same criteria and therefore may qualify for this visa.

In the only other O-1B case even tangentially related to architecture - AAO Apr. 14, 2005 - an interior designer was denied an O-1B. Counsel in that case failed to submit briefing so the dismissal lacked any meaningful detail about the petition.