USCIS Policy
Understanding USCIS Discretion in O-1 Petition Approval When Strong Evidence Is Still Denied
O-1 petitions with complete evidence records are sometimes denied at the final merits step. This article explains how the Kazarian two-step framework creates discretionary space, patterns in adverse outcomes with strong records, and filing strategy that reduces the risk of a discretionary denial.
Whether O-1 adjudication involves genuine discretion
USCIS officers do not have unlimited discretion to deny O-1 petitions on policy grounds unrelated to the regulatory criteria. The O-1 nonimmigrant classification is a status to which an eligible petitioner has a statutory right — it is not a benefit that USCIS may withhold at will simply because the officer disagrees with the petitioner's choices or finds the profession unpersuasive. However, within the boundaries of the regulatory framework, USCIS officers exercise a form of analytical discretion in evaluating whether the totality of evidence demonstrates extraordinary ability or achievement at the level the regulation requires. This discretion operates within the standards set by the USCIS Policy Manual and by AAO non-precedent decisions, but it produces different outcomes for petitions with similar evidence records.
The distinction between mandatory criteria satisfaction and discretionary totality assessment is important for understanding why some petitions with apparently strong records are denied. Under the Kazarian two-step framework, an O-1 adjudicator first assesses whether the petitioner has submitted qualifying evidence for the required number of criteria — a threshold showing assessed according to regulatory standards. If the threshold showing is met, the adjudicator then assesses whether the totality of the evidence establishes extraordinary ability or extraordinary achievement at the required level, considering the quality of the evidence, the comparator pool in the field, and the significance of the achievements documented. This second step is where discretionary judgment operates most visibly.
The AAO has described the second-step assessment as a holistic review of the petition record that goes beyond the criterion-by-criterion analysis of the first step. A petitioner can meet the numerical threshold — qualifying evidence for three or more O-1A criteria, or meeting the O-1B standard — while still presenting a totality of evidence that the adjudicator concludes does not demonstrate extraordinary ability. This outcome feels arbitrary to petitioners who satisfied the criteria checklist, but it reflects the regulation's actual structure, which requires that the evidence collectively demonstrate a level of recognition significantly above ordinary professional achievement. The policy rationale for a holistic second step is that the O-1 standard is not merely a checklist but an overall assessment of standing.
The two-step framework and how it creates discretionary space
The Kazarian framework, which the Ninth Circuit articulated and which USCIS adopted in its 2010 policy memorandum, divided O-1A adjudication into two analytically distinct steps. Step one assesses whether the petitioner has submitted evidence that on its face satisfies the regulatory criteria — whether the submitted materials are the types of evidence the regulation contemplates and whether they are sufficient to constitute qualifying evidence for each claimed criterion. Step two asks a different question: whether the totality of the record, viewed as a whole, establishes that the petitioner has extraordinary ability in the field at the level the statute and regulation require. These steps are sequential, but the second does not follow automatically from a successful first.
The USCIS Policy Manual describes the final merits determination at step two as requiring the adjudicator to consider the quality of the evidence, not just its quantity or category. A petitioner who has won an award, been published by a professional society, and appeared in trade press has technically satisfied three criteria — but if the award is a local or regional prize rather than one recognizing a national or international competitive field, the publication is in a low-prestige outlet that does not signify recognition by the field, and the press coverage is a single mention in a publication of limited circulation, the totality of that evidence may not establish extraordinary ability at the level the regulation requires. The Kazarian framework permits USCIS to reach this conclusion without contradicting the finding that qualifying evidence was submitted.
The inherent subjectivity of the final merits determination is a recognized feature of the O-1 framework, not a flaw that can be litigated away. AAO non-precedent decisions vary in outcome even for petitioners with similar records, and the variance reflects the inherent judgment involved in assessing extraordinary ability across heterogeneous professional fields. Practitioners who study O-1 adjudication outcomes observe that the most consistent predictors of a favorable final merits determination are the quality and independence of the expert letters, the clarity of the comparator argument establishing the petitioner's standing relative to peers, and the specificity of the documentary evidence linking particular achievements to recognized standards of distinction in the field.
Patterns in discretionary denials with strong evidence records
O-1 petitions with complete evidentiary records are most commonly denied at the final merits step when the comparator analysis is absent or weak. A petition that documents achievements in detail but does not establish what those achievements mean relative to the petitioner's peers leaves the adjudicator without a framework for assessing whether the achievements rise to the extraordinary ability level. An adjudicator who does not know the field and cannot independently determine whether winning a particular award places the recipient in the top tier of practitioners, or merely the top half, lacks the basis for a favorable final merits determination even when the criteria are technically met. Expert letters that provide explicit comparative analysis — explaining where the petitioner stands relative to others in the field who have similar career profiles — give the adjudicator the analytical tool the second step requires.
Petitions that present a record of consistent professional achievement without evidence of field-level recognition are also vulnerable to final merits denials. Consistent production of high-quality work, a long track record of commissioned projects, and a well-regarded reputation among professional peers are characteristics of a competent and successful practitioner — but they may not, standing alone, constitute extraordinary ability in the sense the regulation contemplates. The O-1 standard does not reward longevity or consistency; it rewards distinction. A petition record that shows many years of professional activity without evidence that the field has singled out the petitioner as exceptional — through prizes, curatorial attention, critical press, or significant salary differential — is weaker than a shorter record that includes evidence of genuine distinction.
USCIS adjudicators have also issued adverse final merits determinations in cases where expert letters described the petitioner's achievements in superlative terms without factual grounding. A declaration that calls the petitioner one of the most important practitioners in the field without explaining what they have done that is important, how that importance has been recognized by the field's institutions, and how the declarant is positioned to make that comparative judgment, will not carry significant weight in a final merits analysis. The USCIS Policy Manual's direction to consider the quality of evidence at step two extends to evaluating the probative weight of expert declarations, and declarations that function as character endorsements rather than expert analysis do not add much to the final merits showing even when numerous.
Distinguishing a discretionary denial from an evidentiary denial
The response strategy for an O-1 denial depends critically on correctly diagnosing the source of the adverse outcome. An evidentiary denial — one in which USCIS found that the petitioner did not submit qualifying evidence for the required criteria — is most directly addressed by supplementing the record with the missing evidence and refiling. A discretionary or final merits denial — one in which USCIS found that the criteria threshold was met but the totality of evidence did not demonstrate extraordinary ability — is addressed differently: supplementing the same evidence categories may not resolve the problem if the adjudicator's concern was the quality and weight of the evidence rather than its presence.
Reading the denial notice carefully is the first step in diagnosing which type of denial occurred. Evidentiary denials typically identify specific criteria and explain which submitted materials were found insufficient or non-qualifying — with language such as the submitted evidence does not establish that the petitioner has received internationally recognized prizes, or the petitioner has not submitted evidence that the petitioner has performed in a critical role at a distinguished organization. Final merits denials are more likely to contain language referencing the overall quality and weight of the record, or stating that even assuming the criteria threshold is met, the totality of the evidence does not establish that the petitioner stands at the top of the field.
Many denial notices combine elements of both types — finding some criteria insufficiently supported while also questioning the final merits of the overall record. When the denial is hybrid, the response strategy must address both dimensions: supply the evidence that resolves the evidentiary deficiencies while also strengthening the comparative framework and the quality of the expert letters to address the final merits concern. Addressing only the evidentiary gaps without improving the quality of the overall presentation risks another denial at the final merits step even if the criteria threshold is now clearly met.
Responding to a denial
Following an O-1 denial, the petitioner has two primary procedural options: a motion to reopen or reconsider using Form I-290B, and a refiling of the petition with a new and stronger evidentiary record. A motion to reopen requires the petitioner to submit new evidence not previously available or to present new facts that were not part of the original record. A motion to reconsider argues that USCIS made a legal error in applying the regulatory standard to the record as submitted — it does not add new evidence but contends that the evidence already submitted should have led to a different outcome. Both types of motions are reviewed by the same service center that issued the original denial unless the petitioner requests AAO review.
The AAO — Administrative Appeals Office — reviews O-1 denials on appeal and publishes non-precedent decisions in a searchable database. Reviewing AAO decisions in the petitioner's field before deciding on a response strategy is advisable because non-precedent decisions, while not binding, illustrate how the AAO has resolved similar evidentiary and analytical questions. A petitioner whose denial rests on an interpretation of the high salary criterion that AAO non-precedent decisions have consistently rejected may have a strong basis for a motion to reconsider or an appeal. A petitioner whose denial identifies genuine evidentiary gaps will generally achieve a faster and more reliable resolution through refiling with stronger evidence than through a motion that depends on persuading the same adjudicators to reverse their conclusion.
Refiling after a denial with substantively improved evidence is the most common path for petitioners who are committed to O-1 classification. The refiling is a new petition with a new filing fee — it does not carry forward priority date or status implications of the original denied petition. The attorney should draft the cover letter for the refiling in a way that acknowledges the prior denial and explicitly addresses the concerns USCIS raised, without conceding that the denial was legally correct. An attorney cover letter that anticipates and addresses the adjudicator's concerns proactively — explaining why the newly submitted evidence, read in context, resolves the issues the denial identified — produces a more persuasive filing than one that simply submits more evidence without connecting it to the denial language.
Filing strategy to reduce discretionary risk
The most effective strategy for reducing the risk of an adverse final merits determination is to invest in the quality of the expert letters before the initial filing, not after a denial. The final merits determination is most vulnerable to adverse outcomes when the expert letters describe the petitioner's achievements without providing the adjudicator with a comparative framework. Pre-filing consultation between the attorney, the petitioner, and the declarants — including a substantive review of draft letters that identifies comparative gaps and requests specific improvements — produces declarations that do the analytical work the second-step assessment requires.
Petitioners who are on the borderline of extraordinary ability — who clearly exceed the typical professional standard in their field but may not rank at the very top — can use the expert letters to address that question directly. A declaration from a recognized authority in the field that explains where the petitioner falls in the distribution of practitioners — not at the median, not in the top half, but specifically among the most distinguished cohort whose work is recognized by institutional standards the field reserves for its elite — gives the adjudicator language and framing that can sustain a favorable final merits determination even when the objective evidence record is not unambiguously exceptional.
The attorney's cover letter at the initial filing stage should include an explicit final merits argument as a separate section of the legal brief, rather than relying on the evidence exhibits to make the totality case without analytical support. The final merits section should describe the petitioner's standing in the field, reference the expert letters and objective evidence that establish the standard for extraordinary ability in this discipline, apply that standard to the petitioner's record, and conclude with a specific argument for why the totality of evidence meets the O-1 extraordinary ability threshold. A petition with a well-constructed final merits argument is more resistant to adverse discretionary outcomes than one that leaves the second-step analysis entirely to the adjudicator's own synthesis of the record.
What we typically gather for this kind of case
| Document | Where to source | Why it matters |
|---|---|---|
| Petition cover memo | Drafted by counsel | Frames every exhibit before the adjudicator opens it |
| Advisory opinion | Peer or labour organization | Required for most O-1 filings — request early |
| Itinerary or job offer | U.S. petitioner (employer or agent) | Documents the bona fide nature of the U.S. work |
| Premium Processing fee | Form I-907 + $2,805 fee | Guarantees 15-business-day adjudication |
What we see go wrong, again and again
- 01Filing close to a start date and relying on Premium Processing as a backup rather than a deliberate strategy.
- 02Treating the I-129 as the substantive filing rather than a cover sheet for the legal brief and exhibits.
- 03Underweighting the advisory opinion — a thin or hostile opinion is hard to overcome at the response stage.
See if you qualify
Lando reviews your background against the O-1 visa criteria and tells you honestly where you stand. Free, no commitment.