New USCIS Memo clarifying petition validity periods for O-1 aliens of extraordinary ability

On July 20, 2010, USCIS issued a clarifying memo which provides guidance for processing and adjudicating O-1 petitions, with regard to determining the appropriate validity period of an approvable petition when a gap exists between two or more events reflected in the itinerary.

Notably, artists and entertainers in particular, commonly submit petitions with an itinerary that includes gaps in time between scheduled events. USCIS had the following to say in this regard:

The statutory and regulatory background provides flexibility on the length of validity period that may be granted. The statute and regulations allow for an approval of an O-1 petition for a period necessary to accomplish the event or activity, not to exceed 3 years. Adjudicators should evaluate the totality of the evidence submitted to determine if the activities described in the itinerary are related in such a way that they would be considered an “event” for purposes of the validity period. When the validity period requested is established though the submission of appropriate evidence, Service Centers should approve a petition for the length of the validity period requested where the law and regulations permit.

Thus, there is a clear indication in the regulations that a petition may be approved to cover not only the actual event or events but also services and/or activities in connection with that event or events. 8 CFR 214.2(o)(2)(ii)(C) defines the evidentiary standard for identifying the event or activity relating to the events by requiring “an explanation of the nature of the events or activities, the beginning and ending dates for the events or activities and a copy of any itinerary for the events or activities.” Unlike other nonimmigrant categories that have a specified time limit, a temporal period is not specified for the Os. The regulations state that the validity period shall be that which is “necessary to accomplish the event or activity, not to exceed 3 years.” 8 CFR 214.2(o)(6)(iii).

A group of related activities may also be considered to be an event. However, speculative employment and/or freelancing are not allowed.1 A petitioner must establish that there are events or activities in the alien’s field of extraordinary ability for the validity period requested, e.g. an itinerary for a tour, contract or summary of the terms of the oral agreement under which the beneficiary will be employed, contracts between the beneficiary and employers if an agent is being utilized in order to establish the events.

The burden is on the petitioner to demonstrate that the activities listed on the itinerary are related to the event despite gaps in which the beneficiary may travel abroad and return to the United States.