At our law office we often work with immigrants who are very educated, talented professionals and experts in their industry.
Employers who want to bring those talented people to the USA to work here often start with an H-1B visa.
Unfortunately, due to high demand for those visas and lottery, which is conducted for those visas, some of those extremely talented employees are unable to get an H-1B visa. For those employees we also offer an option to apply for an O visa. (O-1A or O-1B).
Through our experience in working with the USA immigration services, we have noticed that immigration services view employees with hi-tech/technical and entrepreneurial background who have national or international recognition as worthy of O visas.
If you are an employer who would like to bring an employee to the USA, we suggest that you talk to an immigration attorney to see if you can qualify your employee for an O visa.
This visa has so many advantages over regular H-1B visas. To name a few: you do not need to participate in H-1B lottery and you can file that petition throughout a year, not just until the quota for H-1B visas runs out (often in 1 day on April 1st). It is also easier to switch from an O-1 visa to a green card.
O-1A visa is a non-immigrant employment-based visa classification for foreign nationals who can demonstrate the sustained national or international acclaim and recognition for achievements in the sciences, education, business, or athletics.
To Qualify for an O-1A Visa
You need to provide evidence that the potential employee has received a major, internationally-recognized award, or evidence of at least (3) three of the following:
- Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor
- Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field
- Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought
- Original scientific, scholarly, or business-related contributions of major significance in the field
- Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought
- A high salary or other remuneration for services as evidenced by contracts or other reliable evidence
- Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought
- Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation
If the above criteria do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence in order to establish the beneficiary’s eligibility.
For our technical and entrepreneurial clients these criteria can mean:
- Winning at hackathons;
- Participation as a speaker or judge in conferences such as TechCrunch, SVOD and other;
- Publishing articles in respectable technical magazines;
- Receiving awards for inventions, patents;
- Getting a large investment into your startup from reputable VC firms;
- Having a large number of articles written about your startup or your product or you.
Feel free to give us a call to see if you qualify for an O-1A visa.
To Qualify for an O-1B visa
Evidence that the beneficiary has received, or been nominated for, significant national or international awards or prizes in the particular field, such as an Academy Award, Emmy, Grammy or Director’s Guild Award, or evidence of at least (3) three of the following:
- Performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements
- Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications
- Performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials.
- A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers or other publications
- Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the beneficiary is engaged, with the testimonials clearly indicating the author’s authority, expertise and knowledge of the beneficiary’s achievements
- A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence.
If the above standards do not readily apply to the beneficiary’s occupation in the arts, the petitioner may submit comparable evidence in order to establish eligibility (this exception does not apply to the motion picture or television industry).
O-1 visa must have a sponsor. This means that the visa is employer specific and a job offer is needed.
There are other technical requirements for this type of visa. However, if we can qualify you for the above criteria, in most cases your attorney will be able to work with you and your employer to satisfy the remaining requirements.
Questions which entrepreneurs may have:
Can a foreign employer be a corporation owned by the beneficiary?
Yes, but the petition must be filed by a U.S. agent. A foreign employer may be a corporation owned wholly or in part by the beneficiary but the foreign employer must utilize a U.S. agent to file the petition. The petition can not be based on speculative employment and the terms and condition of the actual employment must qualify for O classification. USCIS may request information regarding the foreign employer and documentation to establish that there is work in place for the beneficiary in the United States.
A foreign employer who, through a U.S. agent, files a petition for an O nonimmigrant alien is responsible for complying with all of the employer sanctions provisions of section 274A of the Act and 8 CFR part 274a. – from USCIS.
Can a partially or fully self-incorporated person petition for himself or herself in the O classification?
The regulations require that an O petition be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent. The regulations also state that an O-1 alien may not petition for himself or herself. The Immigration and Nationality Act requires that an O petition be filed by an importing employer. Documentation of ownership and control of the business may be requested in this circumstance to verify that the petitioning entity is a bona fide employer in the United States, that the petition is not based on speculative employment, and that the terms and conditions of actual employment qualify for O classification. – from USCIS.
Feel free to give our law office a call to see if you qualify for an O-1 visa.