You have arrived in the Bay Area after a multi-hour long flight from somewhere afar. You conclude California is the best place on Earth and you feel you belong here. Then you realize it's hard to stay.
I am a Spanish citizen and I live in the US. For a long time I had wanted to come to the country and was discouraged by how hard it seemed to be, but eventually I realized there were options that were not obvious at first and now here we are!
Here are some things I have learned by going through the US immigration system that others might find helpful as well. This guide was written with people earlier in their career that have a less clearly defined set of achievements than someone who is more experienced. It’s indeed easier to get a US visa if one has multiple decades of excellent work behind them, but for someone that who's promising but not as proven, what can they do to convince USCIS that they are indeed excellent?
The O1 visa
This is what I know about the most because it's the visa I actually have.
At first getting an O1 visa seems daunting because the USCIS website seems to imply you need a Nobel Prize to get it, but this is not true. What you need to get an O1 visa is specified here. You need to argue that you are excellent in your field. How does USCIS define excellent? A rough proxy is indeed having a Nobel Prize (What they call a major internationally recognized award). But they also let you pick at least three of these (in bold the ones I applied for):
Documentation of the beneficiary's receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
Documentation of the beneficiary's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
Published material in professional or major trade publications or major media about the beneficiary, relating to the beneficiary's work in the field for which classification is sought, which must include the title, date, and author of such published material, and any necessary translation;
Evidence of the beneficiary's participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization for which classification is sought;
Evidence of the beneficiary's original scientific, scholarly, or business-related contributions of major significance in the field;
Evidence of the beneficiary's authorship of scholarly articles in the field, in professional journals, or other major media;
Evidence that the beneficiary has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation; or
Evidence that the beneficiary has either commanded a high salary or will command a high salary or other remuneration for services, as evidenced by contracts or other reliable evidence
Some lawyers will try to find evidence to apply for all of them, because who knows, maybe USCIS will accept it! What I argued in each case was:
- I am an Emergent Ventures grantee [Evidence: Letter from Emergent Ventures' director Tyler Cowen]
- I have some publications out [Evidence: the publications. I don't know if they accepted the ones in my blog though :)]
- I have peer-reviewed papers (2-3 times) [Evidence: Emails from the journals]
- I was an early engineer at a startup called Aiden.ai and played a key role in setting up its data engineering and ML capabilities [Evidence: Websites that talk about Aiden.ai, a letter from one of the co-founders ]
- The startup got acquired, which meant our equity was converted to cash. I used that+my salary to fulfill "high salary" [Evidence: Paychecks, equity statements, screencap of Glassdoor as a comparison for London salaries]
My merits are not anywhere close to having a Nobel Prize, though they are not trivial either. But this brief example hopefully helps more try to apply for the visa. There were other things that were in my petition that I am not sure how they were weighted: I had done some talks at Imperial College (London) on data science, and there were a bunch of publications citing my work that I could find with scholar. When you compile your O1 evidence, the more the better; the lawyer can then help choose what to actually use in the petition.
I was initially pessimistic about my own odds. So pessimistic I made a bet against myself as a hedge of sorts: If I failed to get the visa on my first trial, I would get 100 tacos from my then housemate Harshita Arora (Author of another great O1 visa post!), otherwise I would buy 100 tacos for the house. In the end I got the visa and l also got the house 100 tacos.
Other merits USCIS might accept
For the "judging the work of your peers", being a judge at a hackathon could work if you're applying as a software engineer. Recently USCIS issued guidance for STEM professions that includes some examples of merits that qualify under each criterion listed above. To me the most interesting part of that updated guidance is that one can use letters from experts to qualify for at least one of the criteria; for example if you just published a paper (so it doesn't have citations yet), a professor could testify that it is indeed meritorious work.
What's the process like?
When I started my own application I was in London. I filed for the visa with a lawyer and it eventually got approved (This is form I-797A). Approval to get the visa is not the same as the visa itself: the visa is what goes in your passport. To get that I had to travel to Brussels because the embassy in London was closed because of covid. Getting the appointment is something that's done by filling a DS-160 form.
Getting the visa itself involves a brief interview that's not meant to change the determination the USCIS officer has made about your case, though in rare cases they could do that. I was asked questions like
- If you're applying for a research position, do you have a PhD? [I have two MScs]
- Will you be supervising anyone [No]
- Where is the position based [San Francisco]
I don't remember the number of questions but it was like 6-7, it didn't feel a very long process and the questions were not unexpected at all, just trying to check basic facts of what you argued in the petition. Here, here, and here are some other lists of questions that you may be asked in this interview.
After the interview you then have the O1 visa and you can travel to the US. Be sure to bring the I797A notice with you! Not a copy, but the original one, so the lawyer (or employer) might have to send you that all the way from the US. Bring your entire O1 petition as well. I wasn't asked for the entire petition but I was asked for the I797A on arrival. The CBP agents on arrival will ask you the usual questions and will stamp your passport. It's up to the agent to determine if you're allowed or not, so the more evidence you have with you the better.
You can then go online to check that you have an I-94 that registers your visit. Mine was not automatically updated! To get it you then need to email or call the airport where you arrived. A list of such emails is here. In turn you need the I-94 to apply for a Social Security Number, which you'll need to get paid.
What are you allowed to do on an O1?
The same as on an H1B. You can only work for an employer. Note that USCIS has their own definition of "work". If you do something for someone for money, that's work. A Patreon in your blog could be work. Volunteering for a company, if the position is generally paid, is also work. So watch out! You can make money from capital gains (selling stocks, angel investing), renting a room, gambling, or be given a gift. You can also be on the board of nonprofits if you don't get paid to be there.
One option some people choose is to start a US company (remotely, using something like Stripe Atlas) and be hired by the company. Then, the company could offer services to other companies which you would then perform as an employee of your company. This would not violate the O1 terms because you remain employed by a single entity. However, there are some restrictions on this route: The company must have the means to pay for your salary (This can be shown with letters of intent from potential customers, or financial statements), and importantly, the company must be able to fire you, so you must have less than 50% of the voting rights in the company. This doesn't mean you need to split your profits though! You can incorporate an LLC and slap a board on top. This will a) Make you sole member (and get all the profits) b) Make it possible for the board to fire you (and comply with the O1 requirement). It's a rare case where the member(s) of the LLC (i.e. you) are not in control of the org, but it's perfectly legal.
Can you have multiple O1 visas?
For a long time I assumed that no, that you can only have one O1 and if you want to work for multiple employers it has to be through a company. But you can, in fact, have multiple O1s! As long as you can credibly show that you're working those jobs. If you have a 60 hour workweek you could have a 40hr job and a 20hr job, or you could have various advisory or consulting jobs. Each would require its own O1 but in principle it's doable. My second O1 visa application consisted of the same as the first one. USCIS replied back at first with a Request For Evidence (RFE) asking for proof that I was still working on my original job, so I just sent them (through my lawyer) copies of paychecks from the months prior.
If you get a second visa, you do not need to go out of the country to stamp it again, it automatically becomes valid.
Can you tell the officers you want to stay in the country on an O1?
Many US visas are "non-immigrant intent", meaning that you have to prove that you really intend to return to your home country after the visa expires. The specific wording of the relevant regulation is in FAM 402.31-10 here and FAM 402.13-5
The noncitizen may legitimately come to the United States for a temporary period as an O-1 or O-3 dependent nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.
So you can say, if an officer asks, that you intend to remain in the US until your visa expires, but that you will try to secure an extension or a green card in the meantime. That's all allowed.
Do I need letter of support?
Yes. Some letters you can submit will be used as direct evidence for the criteria you are arguing for. Some are hard to argue for without letters! If you were a critical employee at an organization, it's not always the case that you will get press about you, so you will need a letter from a manager or a founder.
Other letters will be part of the written advisory opinion from a peer group:
The Petitioner must provide a written advisory opinion from a peer group (including labor organizations) or a person with expertise in the beneficiary’s area of ability. If the O-1 petition is for an individual with extraordinary achievement in motion picture or television, the consultation must come from an appropriate labor union and a management organization with expertise in the beneficiary’s area of ability.
When a consultation includes a watermark or other distinctive marks to confirm the authenticity of the document, petitioners should submit to USCIS the version containing the watermark or other distinctive marks. Copies of documents that do not contain the appropriate watermark or other distinctive marks may raise doubts about the authenticity of the document and may result in processing delays. For example, USCIS may request that the petitioner submit the original version of the document. To avoid processing delays, petitioners should ensure that they submit the appropriate version and that any associated watermark or other distinctive marks are legible.
USCIS likes to see watermarks (or letterhead) from the organization or person that is writing your advisory opinion. If you ask a professor, it should be in university letterhead; if you ask a CEO it should be in company letterhead.
Note that this advisory opinion does not substitute for meeting three of the criteria. The letters are like a cherry on top of the petition cake, but not the cake. You could have the President of the US writing that you are amazing but if there is no specific evidence that you meet at least three criteria, you won't get the visa.
How long does it take?
You can check approval times for the O1 petition (I-129 form) here. Currently it would be six months. But you can shorten that to two weeks if you pay extra for premium processing. This is assuming you have all your documentation ready to go of course.
Can you use an agent?
Artists coming to the US on O1 visas might have multiple gigs over a year (think a music band touring the US). But this is not limited to artists, you are allowed to have an agent that sponsors you. This agent could be a friend of yours if so you wish:
if you wish to designate an acquaintance, friend or business associate to serve as your “agent” petitioner for the purpose of the O-1 petition, it is perfectly allowed by the regulations, provided that you and your employer(s) authorize this individual to represent and act on behalf of you and your multiple employers. In choosing this route, it is important to note that there are specific evidentiary requirements that must be met. These may include documentary evidence establishing the agent-artist relationship along with the terms and condition governing the relationship, as well as between the agent and multiple employers. However, it is not required that the agent-petitioner demonstrate that it normally serves as an agent outside the context of the O-1 petition.
This route would let you more easily work with different employers on 1099 (contracting) positions. An additional requirement you have is that you need to show that you have enough gigs lined up that you should get the petition for long enough; if you just have a single potential contract saying that they want to hire you for a month this year, the visa may be granted just for that year.
Learning more about the O1 process
After the publication of this post, it was brought to my attention that the internal documentation USCIS has about you falls under the Freedom of Information Act (FOIA) because it's information about you. That means you have the right to have USCIS send you that information. This includes details on how the O1 petition was assessed. Currently, the only way to get a sense of whether the petition will go through is relying on lawyers who have seen enough cases. But if enough O1 holders got together and FOIA'd USCIS, they could assemble a list of cases that could then serve as guidance for future applicants.
The International Entrepreneur Parole Rule
In theory, if you start a company you may be allowed ("paroled") into the US to work on the company. It sounds great because you don't have to prove that you are excellent. You only need to show that the company can eventually create jobs, that you own at least 10% of it, and that you have received VC money from top VCs (The start-up entity has received a significant investment of capital from certain qualified U.S. investors with established records of successful investments).
I don't know anyone that has applied for this and whenever I talk about immigration with others some tell me that they have heard approval rates for the IEPR are low so they don't even try.
The research nonprofit exception
If your employer happens to be a research nonprofit or a university, you should know it is H1B visa cap exempt, so if you qualify for an H1B you will be granted the visa without going into the H1B lottery! This works for research positions. I don’t know if it also works for other roles; eg. a research nonprofit might employ product designers to create tools that in turn are used by researchers.
Applying for a green card
There are many kinds of green cards ("EBs") that USCIS lists here. For the audience here the most interesting ones are the EB1 and the EB2. The requirements are slightly different:
- EB1 can be achieved in three ways: Being an executive at a multinational, being an outstanding researcher, and having extraordinary ability. This latter one amounts to the same criteria you would have filed for in the O1, but USCIS will be more strict about them.
- EB2 can be achieved in two ways: Applying a job that requires an advanced degree (Like MSc or PhD) or a BSc+5 years of experience. The second one is once again meeting the O1 criteria but with a more lax reading. With EB2 you normally need to go through labor certification (PERM), proving that your role cannot be fulfilled by anyone in the US. This can add months to this visa compared to the EB1
Last October I applied for an EB2-NIW green card. I recommend going with the same lawyer you used for your previous visas because they will already have all your documentation.
With green cards, there is a belief that you're supposed to have stayed in the US for some time under a different visa before applying for a green card. This is false. You can get a green card without ever setting foot in the US until you get it. But this is rare: Most green cards require a sponsor and getting a green card takes time. Not many companies are willing to wait a year or two (or more for some nationalities) to employ you.
Most green cards (EBs) require a company to sponsor you, but if you apply for an EB1, or EB2-NIW you can just apply yourself. This means you could apply for a green card without ever having setting foot in the US!
In practice, if you want to move to the US and you also qualify for one of these you may also qualify for an O1 so you could concurrently file for O1 and the green card, come to the US on the O1, and then do an adjustment of status to the EB. Of course talk to your lawyer first.
Can I leave the US if I have applied for a green card?
Applying for a green card involves filing the form I-140 and once that's approved, filing the I-485. While the I-140 is pending it's fine in theory to leave and return. Once you file the I-485, if you leave the US USCIS will consider that you have abandoned your application :((( You can avoid this by getting an Advance Parole document as well as an Employment Authorization Document (EAD). These two documents together give you the right to stay in the country, and to work in the US, which equals what you get with the green card that will come later.
In my own case, I haven't left the US since I arrived here, and will only leave with an AP/EAD combo or a green card in hand.
How long does it take?
The US green card process takes longer than the O1, but it also depends on the visa class. To get the green card, the steps and associated times are:
- File form I-140 and get a response from USCIS (10 months)
- File form I-485 and get a response from USCIS (10 month)
So it's something like 20 months beginning to end on average, but it could take substantially longer. For example you are only allowed to file the I-485 if there are visas for you. When the I-140 gets approved you get a "priority date". Then you need to check in the Visa Bulletin (Employment Based Preferences, Table A) if your priority date is "current". Foe EB1, EB2, and even EB3 they all are current, meaning that once the I-140 is approved you can immediately file the I-485 form. However, if you happen to be Indian and you have filed an EB2, you would be getting your green card now in 2022 if you applied in 2014. This is because the employment based green cards are capped by country. Joe Biden has been trying to remove these country-specific caps which would make it easier for Indian and Chinese nationals to get green cards.
Employment Authorization Document and Advance Parole
When you file the I-485, another thing you can do is get an Employment Authorization Document (EAD) which will let you work for any employer (form I-765) which will take 4-7 months. In parallel you can also apply for a Advance Parole (form I-131) which will take 7 months). This will let you travel outside of the US until the green card arrives. You don't have to file the I-131 or I-765 though, you can just wait and continue working on your existing O-1. You can think of EAD+AP as equivalent to a green card of sorts.
If you do get an EAD and for some reason the I-485 gets denied then by using the EAD you will have abandoned your prior O1 or H1B status, so you will have to leave the country(!). If you can secure an extension of the O1 you may want to do that instead of getting the EAD.
Some other people I know have had success with a J1 visa, or a TN visa, but I don't know everything about those. For the TN, anecdotally, one person told me she got a scientific technician TN with 1 internship and 2 years of school so this may also be easier than the stated regulations make it seem.
Lawyers can help
Navigating US immigration can be complicated; there are all these forms and the rules are not perfectly clear, they leave a lot open to interpretation, and lawyers by virtue of having worked with the system for many years have a lot of that tacit knowledge required to understand what counts or doesn’t as a merit in the eyes of USCIS, what counts or doesn’t count as employment, and so forth. If you have found a lawyer you’d want to work with, usually they will offer a free consultation call to assess your chances of getting a visa, and can even suggest things to do to make sure you have enough merits; they may suggest that you proactively reach out to hackathon organizers to become a judge for example. Every lawyer I’ve heard of will usually charge some amount upfront, and only fully charge you if the visa requested is actually granted.
Disclaimer: The material is for informational purposes only and does not constitute legal advice
Feedback welcome to jose [at] ricon.xyz