Alternatives to the H-1B: O-1A Visa - Alternative Criterion 3 (Published Materials About You & Your Work)
For those of you considering viable options to the H-1B cap (because you were not selected in this year’s lottery), I will be doing a deep-dive into the O-1A criteria over the next couple of weeks.
When determining whether someone is qualified for O-1A classification, I cannot emphasize enough how essential it is to read the regulations and the requirements in their totality.
What does this mean? Read the regulations and the requirements in their totality. This means literally reading each and every single word – do not summarize or abbreviate the criterion because this is where you get into trouble.
If you do not possess evidence of receipt of a major, internationally recognized award (on the level of a Nobel Prize), in your field of endeavor, you can still qualify for O-1A classification by providing documentary evidence in at least three (3) out of eight (8) alternative criterion, which we will address in the coming weeks.
It is important to note that the vast majority of O-1A recipients that I have worked with (more than 99%) do not have a major, internationally recognized award. These incredibly talented individuals qualify for O-1A classification because they are able to meet at least three of the alternative criterion.
O-1A Deep Dive - Alternative Criterion 3
The regulations state that the beneficiary of an O-1A petition may provide evidence of the “published material in professional or major trade publications or major media about the [Beneficiary], relating to [their] work in the field for which classification is sought”. 8 CFR §214.2(o)(3)(iii)(B)(3).
Problem
What’s so difficult about this criterion? Why do so many people get it wrong? To satisfy this criterion, you must make a two part showing:
There are published materials WRITTEN ABOUT the beneficiary and their achievements AND
That material is published in major newspapers, trade journals, magazines or other publications.
Pro Tips
First, let’s cover what USCIS does not accept as satisfying this criterion. Social media posts such as those appearing on LinkedIn, X, Facebook, Threads, and Instagram do not count as major media. Photos in tabloids or links to videos appearing online do not count. Citations to a beneficiary’s published articles also do not satisfy this criterion (although such evidence can be used to satisfy another criterion which will be discussed in the coming days).
However, if the beneficiary was interviewed for a major broadcast network or related media outlet (which can include major podcasts) and transcripts are provided, such evidence is usually satisfactory. It is important to remember that the article must mention the beneficiary and discuss their recognition, achievement(s) or work in the field.
Second, in addition to providing a printed copy of the article (which must be in English or accompanied by a certified English translation) that shows the name and date of the publication, you must include media kit(s) or circulation/readership data to establish that the media qualifies as major media. Yes, there are adjudicators who will issue an RFE claiming that they cannot determine whether The Wall Street Journal or The New York Times qualifies as “major media” without media kits.
Third, read the Regulations and USCIS Policy Manual, in particular, “Appendix: Satisfying the O-1A Evidentiary Requirements” carefully and ensure that you are providing documentary evidence that satisfies the entirety of the criterion, not just a summary of what you think it means (or worse, only what you have evidence to show).
Fourth, work with a qualified business immigration attorney who is experienced in representing, preparing and filing O-1A petitions. It is essential to understand the changing definitions, regulatory interpretations and adjudicative priorities of USCIS in order to present the strongest possible petition.