In the Matter of EE-

Form I-129 petition approved

We recently accepted a client who had a peculiarly perplexing problem. She had been in the United States on O-1B nonimmigrant status as an alien of extraordinary ability in the arts since 2013. In 2018, she had an I-140 approved for preference classification as an EB-1A alien of extraordinary ability in the arts based on the same work that she had been doing as a nonimmigrant.

In order for her to be able to adjust her status without having to proceed abroad to apply for a visa, the client needed to have her O-1 status extended one more time. However, the USCIS issued her and her prior attorney a second Request for Evidence instead of granting her petition. She found this odd. Not only had the USCIS extended her O-1 status on several occasions, it had also just approved her request for the more stringent immigrant classification based on her same work and achievements.

The client turned to The Law Offices of Grinberg & Segal for assistance in handling the Request for Evidence related to her O-1 extension request. Having handled many employment-based cases, we knew that once USCIS issues a Request for Evidence and articulates grounds on which it may be inclined to deny a petition, it can be difficult to change the agency's mind.

We carefully studied the USCIS's lengthy Request for Evidence. After our review, we adopted a three-pronged strategy for overcoming the Request for Evidence. The strategy involved rejecting certain erroneous assertions by the USCIS, submitting additional evidence to clarify key points, and highlighting that the USCIS appeared to be adopting different reasoning in the Request for Evidence than it had applied to her previous petitions.

First, we identified one point regarding the client's work since her previous O-1 approval that the USCIS had misconstrued. The USCIS suggested that she had claimed that one of her jobs was grander than what she actually claimed, and then found that the evidence she submitted did not establish a claim that she had not made. We took the time to explain what the client actually did and why it was supported by the evidence and, thus, supported her petition. Furthermore, we disagreed with the USCIS's position that other professional assignments that it did not expressly misconstrue were nevertheless insufficient to establish the client's eligibility for O-1 classification. We carefully described each of her work assignments and explained why the USCIS was wrong to minimize their significance.

Second, the USCIS expressed concerns about certain employment that she had engaged in after the expiration of her prior O-1 approval. In order for the employment to have been legal, she needed to have entered into an employment agreement prior to that date. After assessing her case, we found that her employment did not violate her status, but that the initial letters she had submitted left some room for ambiguity. We worked with the client to obtain new letters from the employers in question clarifying the nature and timing of her employment.

Third and finally, we repeatedly reminded the USCIS that it had, on multiple occasions, extended the client's O-1 status for the same work, and that it had just recently granted her immigrant visa petition on the same basis. While the approval of one request does not guarantee the approval of another, it was quite clear that, if anything, the client became more qualified for extraordinary ability classification as she had accrued career accomplishments.

After reviewing our response, the USCIS agreed and granted the client's Form I-129 petition to extend her O-1 status, thus allowing her to pursue adjustment of status on the basis of her approved Form I-140. It was our privilege to help a talented individual on her path to becoming a lawful permanent resident and continuing to ply her trade in the United States. This case highlights the importance of not panicking when the Government does something peculiar, but instead carefully examining the Government's rationale and addressing it point-by-point.