Alternatives to the H-1B: O-1A Visa - Alternative Criterion 7 (Employment in a Critical or Essential Role)
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 7
The regulations state that the beneficiary of an O-1A petition may provide evidence they have been “employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation”. 8 CFR §214.2(o)(3)(iii)(B)(7).
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 been (in the past, but can also include the present) employed in a critical or essential capacity; and
For organizations or establishments that have a distinguished reputation.
Pro Tips
First, many petitions use the terms “critical” or “essential” interchangeably, when these mean different things. For USCIS, a critical role means that the beneficiary has contributed in significant ways to the organization or establishment’s goals or activities. An essential role is one where the beneficiary is or was integral to the organization.
I know, this is very confusing but you can think of it this way: a critical role is one that impacts goals or activities (e.g., an engineer who contributes to the design and development of a highly successful product for a company), where an essential role is one that impacts the organization as a whole (e.g., a high-level executive or manager who creates policies or priorities that determine the company’s growth/trajectory).
Second, many petitions do not establish that the organizations and establishments have a distinguished reputation. To establish that an organization or establishment has a distinguished reputation, look at media reports about the company, including positive reputation, receipt of awards/accolades, significant press, and recognition as a leader in the field.
What evidence can be used to satisfy this criterion? Evidence may include but is not limited to: testimonial letters from people employed by the company with first-hand knowledge of the beneficiary’s critical or essential role; receipt of grants/funding for research and development; and media reports.
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.