Here’s another edition of “Ask Sophie™,” the advice column that answers immigration-related questions about working at technology companies.
“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”
Our startup will be sponsoring my co-founders and me for O-1A visas. How do we qualify for each of the O-1A criteria?
— Extraordinary Entrepreneur
What an exciting journey for you and your co-founders – the O-1A is a great option to enable you to grow your startup and take control of your geographical destiny!
Earlier this year, immigration officials clarified and expanded the types of evidence that meet the requirements for the O-1A extraordinary ability visa, making it more accessible for individuals to qualify! As always, I recommend that you consult with an immigration attorney, who can help you and your co-founders devise an immigration strategy and backup plans if needed.
To qualify for an O-1A, an individual must either have received a major international award, such as a Nobel Prize or meet at least three of the following eight criteria. Strong cases typically meet four or more of these criteria, backed by extensive letters of recommendation as well as other documentary evidence:
Taking the Prize
Nationally or internationally recognized awards
You must demonstrate that you’ve received nationally or internationally recognized awards—typically two or more—for excellence in your field. In January 2022, the Biden administration announced new efforts to attract and retain STEM talent in the United States. That prompted immigration officials to expand the achievements that qualify as nationally or internationally recognized awards for the O-1A.
Here are a few examples of what can now qualify as an award for excellence:
- Receiving a PhD scholarship or doctoral dissertation award
- Securing venture capital funding
- Winning a national or international startup pitch competition or hackathon
- Professional association awards
- Awards for presenting at internationally- or nationally- recognized conferences
Invitation to join a group or association that demands outstanding achievements
This criterion requires you to show you’ve been invited to join a group or association that demands outstanding achievements of its members and are judged by recognized experts. This cannot be a membership that is only based on the payment of a fee or subscription to join or one based on the level of education or the years of experience in a field or is a requirement for employment, such as union membership.
Some examples that will serve to strengthen your O-1A application include:
- Fellow-level membership in an association or organization in your field, such as the Institute of Electrical and Electronics Engineers (IEEE) or the Association for the Advancement of Artificial Intelligence (AAAI)
- Invitation to join a scientific committee, entrepreneurship club
- Acceptance into accelerators or incubators, such as Y Combinator (although probably not YC Startup School), Founders Network, or Techstars, and more.
- Membership in – or a fellowship with – organizations such as Forbes Councils or On Deck.
- Invitation to be an advisor or mentor to an individual startup or through an accelerator or incubator.
It is important to note that the group, organization, or association you join or work with must relate to your field of expertise.
In the Spotlight
Featured in professional or major trade publications or major media
You or your work must have been featured in professional or major trade publications or major media. These can be from your home country. Press releases that were not published or posted by a professional or major trade publication or major media do not count. Hometown newsletters and student-run university publications don’t count either.
Posts on Medium generally do not qualify unless they go viral.
The more publications you are featured in, the better! Six or more is generally good.
And the winner is…
Judging the work of others in your field
Judging the work of others in your field or a related field either as an individual or as a member of a panel, such as a hackathon or other competition will meet this requirement. Many of our clients say they were invited to serve as a judge, but that they didn’t have time to judge the competition. Getting an invitation is not enough to meet this requirement. You must have actually done the work. For startup founders, we have also included hiring decisions as an example of judging the work of others.
Having just one example of serving as a judge is sufficient – but more is always better, especially if they are not well-known competitions.
Significant contributions to your field
This criterion requires you to demonstrate that you and your work have made significant contributions to your field. This requirement often overlaps or ties in with the other criteria. Some examples:
- Your achievements or contributions have generated widespread commentary or media attention.
- Your publications have received a significant number of citations.
- Your work has been used or implemented by others through licensing, patents, or contracts.
- You and your work are pushing your field forward.
Making progress on patents can also be supporting evidence here.
Your Name in Print
Written published articles
If you’ve written scholarly articles in journals or articles for professional or major trade publications or major media, you fulfill this criterion. The articles must list you as the author and be in your field of expertise. Book chapters and books also count, but for example, probably not if they are self-published and only sold 15 copies. Blog posts generally don’t count unless they’ve generated a significant amount of views and comments. Generally, five or more articles are good.
Critical or essential employee for an organization with distinguished reputation
This criterion requires you to show that your role has been “critical or essential” at an organization with “a distinguished reputation.” Demonstrating your work in a critical or essential capacity is usually easy for serial entrepreneurs, funded founders, experienced executives, or team leads focusing on very specific and important projects.
Letters of recommendation, media coverage, and company metrics or key performance indicators are the most common evidence used to demonstrate you have met this requirement.
Commanding higher than average money
Founders can demonstrate this by showing funding awards to their current company as well as the amount of equity they hold in the startup.
If you currently or in the past commanded a salary or other compensation for your work that is higher than the industry average for your geographical area, you can meet this requirement by showing employment contracts, pay stubs, tax documents, or other evidence. Generally, a salary should be above the 90th percentile of comparable wage data based on your location.
Bonuses may be considered if they are included in the total wages section of your tax document. However, benefits, such as stock options, 401(k) contributions, and profit-sharing incentives, do not. Some websites that can help with this evaluation include:
- Bureau of Labor Statistics
- Department of Labor’s Career One Stop
- Department of Labor’s Office of Foreign Labor Certification Online Wage Library
That’s it! Keep in mind that the requirements for the O-1A visa are similar to those for the EB-1A green card. So, while the bar for qualifying for the EB-1A green card is higher than the O-1A visa, obtaining an O-1A means the EB-1A is within reach. Remember, work closely with your experienced O-1A attorney to craft a strong petition and to ensure that you have the freedom you need to engage in your work projects post-approval!
You’ve got this!
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The information provided in “Ask Sophie™” is general information and not legal advice. For more information on the limitations of “Ask Sophie™,” please view our full disclaimer. You can contact Sophie directly at Alcorn Immigration Law.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!