Lin Walker 6/1/24 Lin Walker 6/1/24

Alternatives to the H-1B: O-1A Visa - Alternative Criterion 8 (High Remuneration)

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 8

The regulations state that the beneficiary of an O-1A petition may provide evidence they “[have] either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.” 8 CFR §214.2(o)(3)(iii)(B)(8).

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 commanded (in the past) a high salary or other substantial remuneration for services in relation to others, OR
The beneficiary will command (in the future) a high salary or other substantial remuneration for service in relation to others.

Pro Tips

First, when evaluating high remuneration or salary, it is essential to determine whether the beneficiary is paid hourly or annually. If you are assessing paystubs, it is really important to determine whether the beneficiary is paid every week, bi-weekly (every other week, 26 paychecks per year) or semi-monthly (twice a month, 24 paychecks per year).

Second, whether a beneficiary is earning a high salary or other remuneration requires a comparison by geography and their peers. I have found that a very useful tool is the wage data provided by the DOL’s Foreign Labor Certification Data Center. In order to satisfy the high salary or other remuneration, the hourly or annual salary must exceed the Level 4 wage for the occupational classification most closely related to the beneficiary’s field of endeavor in the geographic location where all services have been performed or will be performed.

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.

Lin Walker 5/25/24 Lin Walker 5/25/24

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.

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.

Lin Walker 5/18/24 Lin Walker 5/18/24

Alternatives to the H-1B: O-1A Visa - Alternative Criterion 6 (Authorship of Scholarly Articles)

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.

O-1A Deep Dive - Alternative Criterion 6

The regulations state that the beneficiary of an O-1A petition may provide evidence of their “authorship of scholarly articles in the field, in professional journals, or other major media”. 8 CFR §214.2(o)(3)(iii)(B)(6).

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 written scholarly articles; and
Those articles have been published in professional journals or other major media.

Pro Tips

First, it is critical to note that this criterion DOES NOT require the beneficiary to be the sole or first/principal author of the article. So long as the beneficiary is listed as an author or one of the authors, the first prong is satisfied.

Second, the article must be published in a relevant professional journal (for the specific or allied field) or major media, which can include conference proceedings, major newspapers, and even well-established websites with a large viewership. In order to establish that the publication meets this criterion, it is essential to provide media kit(s) or circulation/readership/viewership data, impact factor (for scientific or academic journals), acceptance rates (for scientific or academic journals, and rankings in the specific field (for scientific or academic journals).

Lin Walker 5/11/24 Lin Walker 5/11/24

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.

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.

Lin Walker 5/4/24 Lin Walker 5/4/24

Alternatives to the H-1B: O-1A Visa - Alternative Criterion 4 (Judge of the Work of Others)

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.

O-1A Deep Dive - Alternative Criterion 4

The regulations state that the beneficiary of an O-1A petition may provide evidence of their “participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought”. 8 CFR §214.2(o)(3)(iii)(B)(4).

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 served, either individually or as part of a group, as a judge of the work of other individuals AND
The work being judged is in the same or related field of specialization/endeavor.

Pro Tips

First, let’s cover what USCIS does not accept as satisfying this criterion. I have never seen USCIS accept service as the leader of a high school science club, mentoring of high school students, judging an elementary or high school writing or essay contest, or judging high school students as satisfying this criterion. While such work is commendable, in order to satisfy this criterion, the work being judged must be produced by individuals at a professional level.

Second, an invitation to judge by itself is not sufficient. The beneficiary must actually participate in the judging of the work of others.

Third, the work being judged must be in the O-1A beneficiary’s field of endeavor or a related field. If the beneficiary is applying for an O-1A as biomedical engineer, and participating as a judge for a food competition, such work would not satisfy this criterion.

So, what would work? Evidence may include but is not limited to: serving as a review of manuscripts, abstracts or articles submitted for presentation at scholarly conferences or publication in scholarly journals; serving as a member of a doctoral dissertation committee; serving as a reviewer for a government research program to determine the allocation of grants or funds; and/or serving as a member of the editorial board of a journal or publication.

Fourth, 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).

Fifth, 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.

Lin Walker 4/27/24 Lin Walker 4/27/24

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.

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.

Lin Walker 4/20/24 Lin Walker 4/20/24

Alternatives to the H-1B: O-1A Visa - Alternative Criterion 2 (Memberships)

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.

O-1A Deep Dive - Alternative Criterion 2

The regulations state that the beneficiary of an O-1A petition may provide evidence of the “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”. 8 CFR §214.2(o)(3)(iii)(B)(2).

Problem

What’s so difficult about this criterion? Why do so many people get it wrong? To satisfy this criterion, you must make a three part showing:

You must be a member of an organization in the field of endeavor;
Outstanding achievement is a prerequisite for membership in that organization; and
Your achievements have been judged as outstanding by nationally or internationally recognized experts in their field.

Pro Tips

First, let’s cover what USCIS does not accept as satisfying this criterion: memberships based solely on a fee or subscription to a publication/service; membership based solely on experience in the field; and membership that is required for employment (such as union memberships). In my experience, being a member of a board of directors does not satisfy this criterion.

Second, to meet this criterion, you must show that your achievements or contributions to the field have been judged or otherwise recognized as outstanding. This requires documentation about the organization, the different levels of membership (if applicable), the criteria for membership, and evidence that your specific level of membership is one that requires outstanding achievement.

In my experience, most organizations do not meet this criterion, however, there are more organizations in the science and engineering fields that may qualify than there are in the business and education fields. According to USCIS’ Policy Manual, some memberships that may qualify include being a Fellow of IEEE or Fellow of AAAI. I’ve also had clients experience success with other organization memberships as well, and the key to success is providing the documentation showing that outstanding achievement is required.

Lin Walker 4/13/24 Lin Walker 4/13/24

Alternatives to the H-1B: O-1A Visa - Alternative Criterion 1 (Lesser Known Awards)

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.

O-1A Deep Dive - Alternative Criterion 1

The regulations state that the beneficiary of an O-1A petition may provide evidence of the “receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor”. 8 CFR §214.2(o)(3)(iii)(B)(1).

Problem

What’s so difficult about this criterion? Why do so many people get it wrong?

You must have received awards or prizes for excellence in your field of endeavor. A nomination for an award is not enough.
The award or prize must be recognized either nationally (in one specific country) or internationally (at least two countries).

Pro Tips

First, let’s cover what USCIS DOES NOT accept as satisfying this criterion: academic scholarships, poster awards, travel awards, and employment based awards (e.g. employee of the month/year). Keep in mind that patents and trademarks are not considered awards. In addition, awards/prizes granted solely for payment of an entry fee, obviously do not count.

Second, USCIS will consider certain grants/funding awards, doctoral dissertation awards, and awards and prizes received in recognition for excellence in the field of endeavor that are based on a competitive selection process. That is, if you are seeking to satisfy this criterion, you must show:

The reputation of the organization granting the award/prize;
Evidence regarding the significance of the award/prize such as media materials;
The eligibility and selection criteria for the award/prize; and
The number of recipients for the award/prize.

One such dissertation award that was previously recognized for a client of mine was the SPEC Kaivalya Dixit Distinguished Dissertation Award. According to the SPEC Research Group’s website, the award “aims to recognize outstanding doctoral dissertations in the field of computer benchmarking, performance evaluation, and experimental system analysis in general.” (https://research.spec.org/awards)

Keep in mind if eligibility for the award/prize is limited to the employees of a specific company or students of a specific school, such award/prize will most likely not meet this criterion. For example, if a dissertation award is only open to students of a particular university, such award will not meet this criterion.

Lin Walker 4/6/24 Lin Walker 4/6/24

Alternatives to the H-1B: O-1A Visa

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? First, 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.

Second, remove your ego from the assessment. This means you must look at your evidence objectively and see things with an outsider’s perspective. This is particularly true with the first criterion: Major Awards.

A lot of prospective O-1A beneficiaries waste substantial resources (time, money and labor) trying to convince immigration attorneys that they qualify for O-1A classification with evidence that clearly does not meet the criterion, sometimes based on truly bad advice they have read online or received from individuals who are not immigration attorneys.

O-1A Deep Dive - Criterion 1

The regulations state that the beneficiary of an O-1A petition may provide evidence of the “receipt of a major, internationally recognized award, such as the Nobel Prize”. 8 CFR §214.2(o)(3)(iii)(A).

Problem

Satisfying this one criterion is sufficient to establish eligibility for O-1A classification. But let’s be honest–the vast majority of O-1A beneficiaries (and people in general) cannot satisfy this criterion.

What’s so difficult about this criterion? Why do so many people get it wrong?

First, for major, internationally recognized awards, it is not enough to be nominated or make it to the final round of panelists. You must receive the award.

Second, the award must be a major, internationally recognized award in the field, meaning it must satisfy three elements.

It must be an award or prize.
It must be internationally recognized. This means that the award is recognized the world over, not just in one country.
It must be in your field of endeavor.

Pro Tips

First, 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).

Second, include relevant evidence to this specific criterion. Do not include evidence such as academic scholarships, research grants/funding, poster/presentation awards, travel awards, academic awards (regardless of age or institution), employment based awards (e.g. employee of the month/year), memberships in associations (this is its own criterion) and age-related awards (e.g., 30 under 30).

There are very few awards that will meet this criterion, some of which may include, in addition to a Nobel Prize: the Fields Medal (mathematics); Turing Award (computer science); and IEEE Medal of Honor (electrical engineering)

Third, 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.

Lin Walker 12/3/23 Lin Walker 12/3/23

EB-1A Client Success: Electronics Engineer

One of the things I enjoy about being a Business Immigration Attorney is the diverse occupations that we have the opportunity to work with. In particular, I love working with scientists and engineers, not only because their work is so critical to our nation, but also because it is challenging to translate what they do into simple terms without losing the complexity of their work. It is quite a balancing act!

I recently had the opportunity to prepare and file an EB-1A petition for an Electronics Engineer, which was approved by USCIS without an RFE.

The Client, who self-petitioned, had more than 15 years of experience in the Electronics Engineering field, with a specialization in the design and development of semiconductor chips and supercomputing technologies used in artificial intelligence and a diverse range of next-generation technologies, which are key national security and critical infrastructure areas identified by the Biden-Harris Administration.

Although the Client was clearly a leader in their field, they had no media or public footprint–all of their work was behind the scenes. We had a consultation about the EB-1 standards–I assessed their portfolio, advised them of the strengths in their case and areas of potential USCIS challenge. I also advised the Client of key steps that they could complete to strengthen their EB-1A case, which they did. We developed a strategic plan and aggressive timeline–we started preparing the EB-1A in October, filed in mid-November, and received an approval about a week later.

There were 3 keys to our success: (1) identifying the EB-1A criteria that best suited the Client’s work and achievements; (2) properly explaining, in layman's terms, the Client’s niche and showcasing the evidence that supported EB-1A classification; and (3) most importantly, actively collaborating as a team to ensure that all of the language used truly captured what made the Client extraordinary.

It is important to note that although the EB-1A requires submission of at least 3 out of 10 criteria where the beneficiary does not have evidence of a major internationally-recognized award, the more probative evidence that can be provided, the stronger the case. Through our collaborative effort, we were able to satisfy the following criteria: (1) the Client’s membership in associations in the field that require outstanding achievement of their members; (2) the Client’s original scientific and business-related contributions of major significance to the field; (3) the Client’s performance in a critical role (as opposed to leading role) for distinguished organizations; and (4) the Client’s receipt of a high salary or other significantly high remuneration in comparison to others in the field.

With the EB-1A approval, the Client is now able to transfer their old EB-2 priority date, which has retrogressed by 11 years, to the EB-1A preference and apply for lawful permanent residence.

If you are thinking about self-petitioning for EB-1A classification, it is essential to work with an experienced business immigration attorney who possesses: (1) the immigration law and know how; and (2) knowledge of your science and/or engineering industry and how it contributes to the national security and critical infrastructure goals of the United States; and (3) will work with you as a collaborative partner.