Extraordinary Foreign Artists Denied Subsequent Benefit Petitions

Last week’s blog described a handful of notable nonimmigrant visas related to the entry of foreign entertainers into the United States. O visas, relating to extraordinary abilities of solo artists, will be the focus for this blog.

An Interoffice Memorandum written by Willian R. Yates, titled “The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity,” although not precedent, helps outline an ongoing issue. The issue is that adjudicators have questioned prior determinations of status (especially O visa status) where there has been no material change in the underlying facts. This had been going on routinely when the memo was written, in 2004. This issue is still of pertinence today, and will be described in subsequent posts.
Although CIS has the authority to question prior determinations, as adjudicators are not bound to approve subsequent petitions seeking immigration benefits (i.e. extension of petition validity) based merely on prior approval, CIS had been questioning prior determinations without meeting certain criteria as purposed in the memo. As Yates states in the memo, in matters regarding an extension of nonimmigrant petition validity, and the underlying facts have not changed, a prior determination by an adjudicator that the party is eligible for a classification should be given deference.

The memo outlines when a prior approval of a petition need not be given petition: 1) there was a material error regarding the previous approval, 2) a substantial change in circumstance occurred, or 3) there is new material information. The problem at hand now, even after interoffice memorandums like the one written by Yates, is that even when there is no change in underlying facts, previously eligible O visa status parties are sent to their home countries if five years have passed and parties are subsequently petitioning or applying for immigration benefits. This puts these artists at an incredible disadvantage, especially when their petitions are denied, they no longer can proceed with their jobs as artists in the U.S., and may ultimately have to leave their families behind.

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