Alternatives to the H-1B: O-1A Visa - Alternative Criterion 5 (Original Contributions of Major Significance)
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 5
The regulations state that the beneficiary of an O-1A petition may provide evidence of their “original scientific, scholarly, or business-related contributions of major significance in the field”. 8 CFR §214.2(o)(3)(iii)(B)(5).
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:
The beneficiary has made original contributions; and
Those contributions are of major significance to their field.
Although many O-1As can meet this criterion, it takes strategic planning and organization because many different types of documentation serve as the “ingredients” to show original contributions of major significance.
Pro Tips
First, a beneficiary must show that they have made original contributions. An original contribution, which can include but is not limited to: establishing a cause for a certain phenomenon; developing a new technology, tool, process or method to investigate a phenomenon or resolve an important issue in society; creating a new method to identify and combat fraud and/or cybersecurity issues; and developing a new model to investigate disease or illnesses.
USCIS will consider a contribution to be original if it resulted in obtaining grants/funding, publishing articles, or receiving a patent. Note, however, that evidence of the a patent, alone, is not enough.
Second, the beneficiary must establish that the original contribution is of major significance to the field. USCIS will consider an original contribution to have major significance if: it has received significant attention from others in the field; if publications based on the contribution received significant citations; and/or if it has been licensed or utilized in a specific product.
What evidence can be used to satisfy this criterion? Evidence may include but is not limited to: testimonial letters from experts in the field discussing the originality and significance of the beneficiary’s work (more evidentiary weight is given to independent expert letters); citations reports and/or citations analyses showing that the beneficiary’s work has received numerous citations from recognized organizations/experts in the field; patents that have been licensed; or evidence of the commercial application/use of the contribution.
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.