This post is intended for immigrant startup founders, employees or investors evaluating US visa options. The visa journey isn’t clear cut or straightforward. I received a lot of conflicting advice and ended up spending 100+ hours researching different options and preparing my application. I hope this helps demystify the process and saves others’ time.
O-1 visa applicants must demonstrate extraordinary ability in their field. This is a high standard, so O-1 visas are not usually the first option to consider for people looking to move to the US. But for those with significant, documented experience or academic credentials, the O-1 is worth considering. I’ll highlight the benefits of the O-1 vs the H-1B.
After working for years in technology and startups, I believe immigrant entrepreneurs have a unique ability to overcome difficulties, bringing fresh and diverse perspectives to the startup space. This post is to help others understand what an O-1 visa is and figure out whether it’s the right or them.
About me: I’m a British citizen and I moved to the US in August 2019 from Berlin. I wanted to move to San Francisco because I thought it would be a great place to meet ambitious smart people working on hard problems (I like working intensely on important things!). I’m very happy here now (as pictured!). Disclaimer: I’m not a lawyer! I also applied under the Trump Administration and there may be new visa options in the next few years.
If you have any questions, feel free to reach out on Twitter @lisawehden. I was inspired by Harshita’s guide (which is great and you should also check it out).
What’s covered:
- What is an O-1 visa?
- O-1 vs H-1B
- How to apply
- Recommendation Letters
- Processing times and fees
- RFEs
What is an O-1 visa?
According to the Citizenship and Immigration Services agency at the US Department of Homeland Security, the O-1 visa applies to any individual:
“who possesses extraordinary ability in the sciences, arts, education, business, or athletics (the O1-A) or
who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements (the O1-B).”
O-1 visas are initially granted for up to three years. After that they can be extended for one year at a time and there’s no limit on the number of extensions. There are two types of O-1 visas, the O1-A and the O1-B. In this post I’ll focus on the O1-A as it’s for those applying for extraordinary ability in business which is more common for individuals working in the technology sector.
What are the benefits?
There’s many advantages to the O-1:
- There is no annual quota on the number of visas that can be issued (H1Bs only have a quota for the initial visa; there is no quota for renewals)
- The processing time is typically faster than for the H-1B
- O-1 status is far less likely to be subject to political controversies (and adverse changes in visa rules)
- There is no ultimate limit on how long you can stay in the US — after your first visa status expires, you can keep extending your status indefinitely in one-year increments (However you can stay on H1-B in the US past 6 years if you have a pending green card petition. H1-Bs are issued in 3-year increments, so you could indefinitely renew for 3-year increments until you’re eligible for a green card)
Additionally similarly to the H1-B:
The O-1 visa is considered a “dual intent” visa, which means that you can transition to permanent residency without returning home first, as long as you meet the requirements for permanent residency under whichever status you are seeking (EB-1, for example, which I’ll discuss later).
O-1 visa holders can change employers while in the United States, without having to return home.
The difficulty is providing the necessary documentation to demonstrate to US immigration officials that you possess extraordinary ability.
What does “extraordinary ability” mean?
The phrase “extraordinary ability” means a level of expertise that the applicant is one of a small percentage of people who has risen to the very top of their field of endeavour. If you’re applying for an O-1A in business, you will have to specify which subsection of business you’re an expert in (e.g., emerging startup technologies, developer technologies etc).
One of the reasons for this is that the term “extraordinary ability” is inherently subjective, subject to the discretion of the USCIS examiner. This means you have to build a clear narrative argument around why you’re extraordinary and provide ample evidence. Think of this like a story about your career and achievements.
How do you apply?
If you want to apply for an O-1 visa, you can’t file the application yourself. Instead you need:
- a sponsor (an employer) who can file the application on your behalf.
- if you want to work on your own startup or other independent work, you’ll need to form an LLC or C Corp. I didn’t try this method but the O-1 requires you to own 49% equity in the sponsor company or have an odd number of directors on your board so you can be fired. You’ll need to submit a business plan as part of your application.
- If you are in the US on other lawful status, then along with the I-129 form, you will need to file a change of status form requesting to change your status from your current temporary visa to an O status.
- For people on an OPT, F1 or J1, it is possible to change to an O-1 — there’s SO many myths that you can’t switch and that’s a not true. However it is harder to prove extraordinary status if you’re moving from one of these visas.
- If you are outside of the US, once your I-129 visa petition is approved, the next step is to obtain an O visa from the US consulate in your country.
You’ll need:
- A copy of your contract with your employer
- You don’t need the original copy, and USCIS (apparently!) will accept an oral contract as long as your provide them a summary of the essential terms
2. A copy of your previous stays in the US
3. Evidence of your extraordinary ability
To document proof of extraordinary ability, your application will need to include evidence that meet three of the following eight criteria:
- Nationally or internationally recognized prizes or awards in your field.
- Membership in professional or occupational associations for which membership requires outstanding achievement (something equivalent to the National Academy of Sciences, for example) as judged by experts in the field..
- Publications in professional journals or distinguished trade publications or other major media about you and your work.
- Original and significant scientific, scholarly, or commercial contributions to your field.
- Scholarly articles in your field published in professional journals.
- A high level of compensation (salary or other remuneration).
- Participation as a judge in evaluating the work of other participants in your field or a similar field.
- Employment in an essential role for organizations with distinguished reputations.
Some examples of evidence could include being accepted into a prestigious accelerator (YC or 500 startups), having articles published in major media (such as TechCrunch) or participating in panels or judging others’ work. If you want to improve your chances, try and speak at tech conferences, events, apply to hackathons, write articles etc.
I spent at least 50+ hours collecting evidence — emails, videos, articles, degrees etc. This part takes the longest time so try and be organized (set up a google folder with all your evidence).
The advisory opinion letter:
The advisory opinion letter is a written advisory opinion on your extraordinary ability from experts in your field (basically a letter of recommendation). You’ll need to get between 8–10 letters from high status people working in the technology industry who vouch for your extraordinary ability.
The letters can be a combination of people who have worked directly with you and people who know about your work but haven’t work with you.
Forms:
- Your sponsor must complete and sign Form I-129, Petition for Non-Immigrant Worker and related I-129 O supplement (your attorney will help you with this but you’ll have to ask your employer to sign several forms)
- Include all supporting documentation of your extraordinary ability (you’ll need to include copies of every piece of evidence — copies of your degree, relevant articles, prizes etc).
- Prepare the filing fee of $460 in the form of a business or personal check, money order or cashier’s check, payable to “Department of Homeland Security.”
- Send the application package to the appropriate USCIS Service Center.
- The USCIS will send a Receipt Notice. This confirms that USCIS received the application.
The entire application can range from 400–900 pages (you’re require to include physical copies of every piece of evidence you reference in your application).
Processing times and fees:
The processing time for an O-1 application is considerably shorter than processing times for most other types of visas. In most cases, processing is completed within two or three months. Current processing times can be found here.
- The current USCIS filing fee is $460.
- You can also use the USCIS Premium Processing Service by filing Form I-907. This will shorten processing time to only 15 days, but it will cost you $2,500 in processing fees.
Different immigration providers quote various fees.
RFEs:
USCIS may issue a Request for Evidence (RFE) at some point during processing. The RFE is basically USCIS asking for more information / evidence to prove your extraordinary ability. Last year, apparently 50% of all applications received an RFE. If you receive an RFE don’t panic. You will need to respond with the evidence required by USCIS to process your application.
USCIS will issue a written notice of its decision (approval or denial). If the application is approved, USCIS will send an I-797 approval notice. This is a critical document, so don’t lose it.
What happens if there are changes in O-1 employment?
You’ll have to file an amendment if there are material changes to your employment (e.g., if you change your job, move from part-time to full-time etc).
What’s next after the O-1?
You can apply for the EB-1 (green card) which is the exact same criteria for the O-1 but the bar for evidence is harder. You can self-sponsor the EB-1 (so you don’t need an employer).
Finally GOOD LUCK. It’s a hard emotionally draining process applying for a visa and there’s a lot of uncertainty. Keep focused and feel free to reach out if you have any questions.
