Goodlatte Statement at Markup of the O-VISA Act

Chairman Goodlatte: H.R. 3636, the “Oversee Visa Integrity with Stakeholder Advisories Act,” introduced by Mimi Walters, makes a valuable improvement to the O visa program.  It will provide needed transparency while helping to combat fraud. An O-1 visa is a temporary visa for an alien who “has extraordinary ability in the sciences, arts, education, business, or athletics . . . and seeks to enter the United States to continue work in the area of extraordinary ability.”  An O-2 visa is a temporary visa for an alien who “seeks to enter the United States [to] accompany[] and assist[] in the . . . performance” by an alien on an O-1 visa.  An O-2 alien must be an integral part of such performance and have critical skills and experience. Employers seeking O visas must satisfy a “consultation” requirement designed to protect American workers.  When filing O-1 petitions, they must include a written advisory opinion, generally from a peer group or labor organization with expertise in the specific field. Advisory opinions are, in a word, advisory to U.S. Citizenship and Immigration Services (USCIS).  USCIS regulations provide that “[i]f the advisory opinion is favorable . . . it should describe the alien's ability and achievements in the field of endeavor, describe the nature of the duties to be performed, and state whether the position requires the services of an alien of extraordinary ability.  A consulting organization may [instead] submit a letter of no objection.”  If the advisory opinion is not favorable, it “must set forth a specific statement of facts which supports the conclusion reached . . . .”  USCIS has told me and Mr. Conyers that “consultations are only one piece of evidence reviewed in the totality of all the information provided . . . .  [A] petition with a negative consultation could still be approved [and] a positive consultation may not necessarily lead to approval of the petition.” USCIS approves almost all the O visa petitions it receives.  As to how many petitions contain negative advisory opinions and are approved anyway, USCIS told me and Mr. Conyers that “[o]ur database does not capture the information . . . .” Further, USCIS does not provide notice as to the outcome of adjudications to the organizations that provide advisory opinions, believing that to do so would be in violation of the Privacy Act. This lack of transparency has apparently encouraged fraud.  The Directors Guild of America [DGA], which submits many advisory opinions, has reported of instances where “[p]etitioners who [receive] an objection from one labor organization, seek a[n advisory opinion] from a different organization [or] remove or revise the evidence in their petition to omit the basis for DGA’s objection before submitting the petition to USCIS.”  It has also reported of “[p]etitioners who physically alter DGA letters to change their content [or] draft fabricated letters and forge DGA signatures . . . .” There is a simple way to combat such fraud.  If organizations providing advisory opinions could see the actual decisions issued by USCIS in the cases they were asked to opine on -- including the advisory opinions as submitted to the government by the employers – they could self-police for fraud.  And they would also learn of those instances where USCIS has approved petitions over their objections.  They and Congress could better ascertain whether USCIS is being judicious in its determinations and protecting American workers from foreign workers who do not meet the standards of the O visa program.  I can think of no reasonable policy argument against such transparency.  Legitimate privacy considerations do not come into play.  After all, it was the petitioners themselves who first approached outside organizations and asked them to review the merits of their proposed O visa recipients. H.R. 3636 takes this common sense step.  It provides that DHS shall provide a copy of a decision on an O visa petition involving a motion picture or television production to the organization that provided an advisory opinion.  I commend Ms. Walters for introducing this needed legislation and I urge my colleagues to support it. I would like to make an additional point.  There are other reforms to the O visa program that the Committee should consider at an appropriate time to facilitate its use by truly extraordinary individuals.   Among these would be H-1B-like portability, in which O visa holders could begin working for new employers upon the new employers’ filing of appropriate petitions, and expanding a current measure that allows O visa petitions to be filed for certain aliens without advisory opinions, if the aliens had previously received O visas, had received advisory opinions within the last two years, and seek to perform similar services. For more on today’s markup, click here.  ###