Massive Fraud Shown in O-1 (Extraordinary Ability) Nonimmigrant Category

By David North, April 30, 2017

[Revised May 8, 2017, to reflect that the New York case involves O-1 nonimmigrant visas, not EB-1 immigrant visas.]

It is with some chagrin that I return to a discussion of the relatively small "aliens of extraordinary ability" visa category.

A few weeks ago I wrote enthusiastically about Anya (not her real name) as an exemplar of the immigration system working as intended, as it so often does not.

Anya, on the cusp of a PhD from a highly reputable institution, whose life-long study is on why patients with curable medical conditions do not take the drugs they are supposed to, was on her way to securing a green card via the EB-1 category. And though she may set in motion some chain migration later, she is entering alone at this point. I still think the process works well in her case.

But a dash of cold water on a related visa category has come from the federal courts in the Southern District of New York. There is a criminal complaint (PACER case 1:17-mj-02439-UA) that indicates that an immigration/show business lawyer in New York City has filed more than 150 fraudulent applications for the somewhat similar O-1 nonimmigrant visa, many of which appear to have been successful.

The O-1 visa is a temporary one and is for an alien "who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry", to quote the immigration law.

O-1 visas are more numerous than the immigrant visa (EB-1) dealing with a similar population, those of outstanding ability.

The New York case is another one of those instances where a tiny portion of the immigration law has been exploited by both illegal aliens and their middlemen, where the illicit practice has gone on for years, only to be exposed after many aliens have used it improperly. It reflects well on one part of the Department of Homeland Security — Homeland Security Investigations (HSI) — but badly on the adjudicators at USCIS.

According to the complaint, Manhattan lawyer Charles Mason Lore exploited a clause in the law regarding the proof required for a successful O-1 application. To get this proof, an alien pays a non-refundable fee to a "peer organization" in the alien's field of work to examine the alien's claim for "extraordinary ability" status.

The rationale is a strong one: Who better than a national association of pathologists, for instance, to weigh the ability of a given pathologist?

If the association has no trouble with the skill level of the specific alien, it issues a "no objection" letter to that effect. Such a letter accompanies the alien's application and reinforces it.

According to the complaint, Lore forged more 150 such letters using seven different show business associations to support aliens' claims of extraordinary ability.

Unfortunately the complaint does not give the names of these organizations, but perhaps "Organization-1, based in Sherman Oaks, Calif., represent[ing] major feature and television motion picture producers in the motion picture industry" to quote the complaint, is the Motion Picture Association of America, which has an office in that city. Almost half of Lore's fraudulent "no objection" letters, 74 in all, were submitted in the name of "Organization-1". (Suggestion to USCIS: If you see three or more "no objection" letters on the same letterhead over a period of a couple of years, send a form letter to the signer along with a copy of the incoming letter and ask if that is the organization's position on the matter.)

It should be obvious that the "no objection" letters do not flow directly to the government from the associations; they are sent via the applicant, or his or her lawyer. This saves staff time, but offers room for corruption — a standard trade-off in the immigration processing business.