O-1B Consultation Procedures
Please first review the Labor Consultation page for universal guidance on labor consultations. The information below pertains to a special O-1B consultation procedure.
In theory, U.S. Citizenship and Immigration Services (USCIS) will obtain the labor consultation for the petitioner if the petitioner includes with the petition a non-labor consultation. USCIS is supposed to forward a full copy of the petition to the appropriate labor organization within five days of receipt and, if the union fails to respond within fifteen days, USCIS "must" adjudicate the petition without the union's input. The field of opera has relied most heavily on this process.
However, relying on USCIS to obtain the labor consultation risks slowing the process down, even assuming the USCIS examiner is familiar with what is now a little-used procedure, and also relinquishes control over the process. The American Guild of Musical Artists (AGMA), for instance, simply does not respond to USCIS requests for advisory opinions unless it receives its $250 fee directly from the petitioner. If indeed speed is paramount, the petitioner should consider obtaining the labor consultation directly from the union. Note that where other evidence of distinction exists, a consultation from a non-labor source is optional. And, because a non-labor advisory opinion can come from an individual as well as an organization, there is no practical difference between such an opinion and the type of expert opinion used under the comparable evidence standard.
A reason to consider using the special O-1B consultation procedure despite the risk of delay is that, by law, unions have fifteen days to respond to USCIS consultation requests, after which USCIS is free to adjudicate the petition without the consultation. Petitioners resolved to use this O-1B procedure should state in their accompanying letter that they are enclosing a non-labor consultation and are relying on USCIS to obtain the labor consultation under the procedures set forth at 8 CFR § 214.2(o)(5)(i)(F). This is a citation to the actual provision in the applicable USCIS regulations, which includes a requirement that USCIS will adjudicate the petition if the union does not respond within fifteen days.
Also, in O-1B cases, a new labor consultation is unnecessary if the alien is re-entering the U.S. to perform similar services within two years of the date of a previous O-1B labor consultation. If you seek a consultation waiver, say so in your cover letter to USCIS, explain why, and write "waiver requested" in the consultation section of the I-129 O/P Supplement. However, if the petitioner cannot supply a copy of the prior consultation (the prior petitioner’s identity is immaterial), this exception is unavailable.