Should I decline to sign this O-1 visa letter?
June 21, 2015 9:48 AM   Subscribe

A young designer asked me to write a letter on her behalf for an O-1 visa application. She has a job offer from a certain fruit-named tech company. I don't want to go into detail here about how I know her; I'm familiar with one of her projects, but don't know her well at all. Her lawyers provided a letter, but it uses language I'm uncomfortable with ("I can say without hesitation that X represents the best of the best in Y industry") and that the lawyers say is important. The rest of the letter also doesn't sound like anything I would ever say. What should I do? I don't want to hurt her application, and I initially said that I would do this, but I don't think my actual letter would offer the kind of support they're looking for.
posted by three_red_balloons to Law & Government (15 answers total)
 
An O-1 visa represents extraordinary ability. The idea is that the person must at least appear to be a rockstar in their field, so this kind of language is a necessity. Whether you wish to support her career or not is up to you.
posted by StrikeTheViol at 10:00 AM on June 21, 2015 [1 favorite]


Best answer: The language the lawyer is suggesting is designed very specifically to fulfill O-1 criteria, not to say anything in particular about the person in question. This isn't a "reference letter" as suggested by your tags, since Immigration Services isn't hiring her, nor does Immigration Services know anything about you beyond your job title. Further, Immigration Services doesn't care whether she is a "good person" or really anything about her beyond her employment, technical/artistic talent, and demonstrated ability (see here for specific enumerations of each of these). Unless you think the language used is false (like claiming she did something she didn't actually do), I would sign the letter as-is. Various versions of the "best of the best" language used are going to be used by every other visa applicant, so it's not really an exception; it's the norm. You'd merely be giving her the same level of support as every other applicant for the visa.

You can decline to complete a letter, but I'd caution you that:
  1. You'd only be (possibly) hurting her immigration prospects.
  2. There'll be someone else that signs the letter near-verbatim if you don't (most tech companies have hoards of corporate officials that sign these sorts of letters all day, even if they don't know the person in question at all).
  3. You won't be helping your professional image by any thought of ensuring your recommendations are valid - these letters are only read by Immigration Services (if they read them at all), and definitely not by anyone who you would consider to be your peer.

posted by saeculorum at 10:03 AM on June 21, 2015 [10 favorites]


Response by poster: Saeculorum, when you say it could hurt her immigration prospects, is that because the government could somehow find out I had agreed and declined, or just because she may have difficulty finding someone else?

Can anyone weigh in on the ethics of this- if I feel this person is quite talented but not necessarily exceptional?
posted by three_red_balloons at 10:13 AM on June 21, 2015


So my husband recently went through a similar application process (not an O-1 visa), but for a Green Card under a National Interest Waiver category. This required similar letters of recommendation from experts in his academic area. Again, we got the help of a lawyer to draft the letters and they were just sent out to the experts for signing. They could change the letters, but most just signed. We were amazed at the intemperate language used in the letters -- it seemed that my husband was God's gift to American science, but everyone in the process, from the lawyers to the other scientists, understood that is just what is (unfortunately) needed to convince the USCIS that this person should be allowed to stay on in the country. There is a recommendation arms race going on here - consider that your colleague is in a competition for O-1 slots with other designers who will have similarly immodest recommendation letters. Unless you genuinely feel that this person should not be allowed to stay in the country based on her design ability (and that she compares unfavorably with other similar designers also applying for such visas), I would consider that this is just doing what needs to be done. It is useless to apply the standards that would apply to recommendation letters for universities or jobs to these letters - they're being used for a different purpose. If you care about this person, and wish them to stay on in the US, I would just go ahead and sign the letters, if I were you.
posted by peacheater at 10:14 AM on June 21, 2015 [9 favorites]


Saeculorum, when you say it could hurt her immigration prospects, is that because the government could somehow find out I had agreed and declined, or just because she may have difficulty finding someone else?

The latter (difficulty finding someone else) - hence, the "possibly" (if she actually has difficulty finding someone else). To be honest, I think that #2 on my list will come to play here. If she has an offer of an employment from your hypothetical Apple-like company, that hypothetical Apple-like company will find someone to sign it. The only thing that'll happen from declining to sign it is that she'll get someone else to sign it instead, and she'll always look at you a little funny in the future.
posted by saeculorum at 10:31 AM on June 21, 2015 [2 favorites]


I wrote a few of these for engineers (fortunately, they really were as good as I made them out to be). The impression I got from the process was that nobody ever read them. They just exist so a bureaucrat can stamp something as "received," and should anything go sideways with the application (e.g. an actual crime gets committed), an attorney would have them on record for a potential court process.

So, I recommend you sign it as is.
posted by Cool Papa Bell at 10:34 AM on June 21, 2015 [4 favorites]


If you know her project and thought that it was good, would you feel more comfortable writing something more like, "Her work in X represents the best of the best in industry Y"?

Personally, I'd write a letter in a similar form to what the lawyers recommend but with words that I could swear to. Then see what she and her lawyers think. Try to do it with plenty of time left until she needs to hand in all her documents in case she needs to find another referee.
posted by kinddieserzeit at 11:51 AM on June 21, 2015


I used to be an immigration paralegal and I helped draft letters like this for various visa petitions and applications (including a couple for O visas). They are basically form letters where the language about how great she is comes straight from the regulations and the personal and firm details are pasted in by someone on the lawyer's staff. As in, when I did it, I had a form that the attorney had originally drafted for the petitions I did regularly and I did find-and-replace to fill in company and applicant names. Other details were lifted from the company brochures and questionnaires we sent and dropped in as needed.

If you can't do this, she'll have to find someone else to do it. If you change up the language, the lawyer may or may not be able to use it. It's not, as someone said upthread, a standard letter of recommendation. It's more like making sure the letter has all the keywords the immigration examiner needs to see to approve the application.

An O-1 visa means that the designer needs support letters that say she's the best of the best. Either she really is that good or, equally likely, there is some reason that she's going for this category over another (e.g., she might apply as an H-1B but the annual quota for those is used up immediately when the new fiscal year ticks over). In the latter case, your hesitation could make the difference between her getting the visa and not getting the visa. I don't say that to make you feel guilty or anything--just letting you know that our immigration system is screwy and the fact that you're being asked to write a ridiculously effusive letter may be a consequence of the screwy way our immigration laws and regulations work.
posted by immlass at 12:23 PM on June 21, 2015 [2 favorites]


I had to get some of these for my own O-1 visa - they all have to be worded pretty much this way. I had some people who knew me well do some, and other people I knew passingly in a specific context. As stated earlier - the wording is designed so that the officials who evaluate the process can check the boxes that the bureaucratic process requires to be checked.
Even then it's a crapshoot - with the same letters in hand, my first O-1 visa was approved, my second O-1 visa was denied, and my green card was approved.
posted by blue_wardrobe at 12:33 PM on June 21, 2015 [1 favorite]


Best answer: Can anyone weigh in on the ethics of this- if I feel this person is quite talented but not necessarily exceptional?

Sometimes the law is enforced the way the law is enforced, and it's worth recognizing when lawyers are drafting a letter to that specific law and for that narrow purpose. There was a great article this year titled Uncivil Obedience [full article PDF], which you might find a relevant read. It discusses, in part, how laws can be so restrictive that the most effective means of protest is to obey them to the letter, "against common practice and widely shared sense of desirable practice." (See page 818, and note 32: "William Simon has described work to rule as the practice of 'bring[ing] an enterprise to a halt by refusing to cut the corners necessary for things to function smoothly' and cited it as a case of 'scrupulous compliance with the law [that] is so burdensome and even disruptive that it occurs only as a form of protest.'")

I don't raise this facet necessarily to encourage you in either direction. I'm definitely not suggesting you turn this into a protest. But if you're considering the ethics, I think this facet might be helpful. You might think about, if you did frame declining to sign the letter as some sort of protest—because clearly it could be framed that way—what would be its likelihood of having any positive effect; and would you pay the "price" for the protesting action, or would that cost land on another person's head?
posted by cribcage at 12:40 PM on June 21, 2015 [3 favorites]


Best answer: As many have said, the reason why the lawyer is asking you to sign this letter is because this is the type of language needed in order to qualify as an "alien of extraordinary ability." It's not so much a meaningless piece of paper that some immigration official needs to stamp and stick in a file without reading, as the (somewhat ineffective) way that a rapidly growing bureaucracy has found to deal with the fact that the average USCIS employee can't necessarily judge whether somebody has extraordinary ability in, say, biochemistry or particle physics. In order to qualify for an O visa, a person is supposed to "demonstrate extraordinary ability by sustained national or international acclaim." Since the person approving the application doesn't usually have the expertise to decide whether somebody qualifies in a particular area, they, quite reasonably, decided that they would ask experts in the field rather than guessing. The problem is, this is a very high bar, and it is very common for people who don't necessarily meet that bar to receive O visas by asking people like you to stretch the truth.

I can't say that it's ethically right or wrong to do so. There are huge problems with the immigration system, and there are times when breaking the law can absolutely be the correct thing to do. All the people who lied to help get Jews visas during WWII were undoubtedly doing the right thing, and those who obstinately enforced the letter of the law, knowing that they were condemning people to torture and death, were in the wrong. However, just because "everyone else is doing it," just because you feel peer pressure to do so, just because people here are saying "it'll be bad for her career if you don't and nobody will read it or come back and blame you anyway" - that doesn't mean you should put your name on something that isn't true. People will frequently write letters on behalf of people applying for tourist visas, swearing that the applicant would never want to live in the US and that they only plan to visit for a week, while knowing full well that the applicant actually plans to overstay the visa, find a job and move to the US. I don't know if this is right or wrong, considering our immigration system, but it's no different than what you've been asked to do.
posted by exutima at 1:33 PM on June 21, 2015 [1 favorite]


The language is to tick off USCIS boxes. I know people in the US on O-1s who are extremely smart and talented but not "rock stars", and they'd say so themselves.

There's not really a visa class that suits "quite talented but not necessarily exceptional" tech/digital people, because the US visa system is stupid and broken: the H-1B is problematic in all sorts of ways, and the O-1 is being used in a way that slightly stretches its official wording, but for technology fields there's no equivalent to the academic and professional hierarchies that are usually invoked for an EB-1.
posted by holgate at 2:07 PM on June 21, 2015 [2 favorites]


Best answer: Can anyone weigh in on the ethics of this- if I feel this person is quite talented but not necessarily exceptional?

Pretty simple to me: Do you think she should be forced to leave the US?

If yes, decline.

If no, sign the letter as written, because that's the letter that doesn't force her to leave the US. The histrionics in the letter aren't your fault or her fault; they're USCIS's fault because they're too stupid and hide-bound to accept anything less.
posted by ROU_Xenophobe at 2:48 PM on June 21, 2015 [13 favorites]


I've worked very closely with someone here on an O-1 visa. They were, indeed, a rock star. Not "really smart", but actually one of the smartest people I've ever worked with. The wording you quoted is precisely how I'd describe them.


I feel this person is quite talented but not necessarily exceptional?

That's definitely not what the O-1 is for. Whether tech companies try to get people in any way they can is a different matter.
posted by ryanrs at 1:33 AM on June 22, 2015 [2 favorites]


On the other hand, maybe don't worry too much because I think her design portfolio and major awards are weighed more heavily than the letters, for obvious reasons.
posted by ryanrs at 1:41 AM on June 22, 2015


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