The O-1 Visa Overview
The O-1 visa is a work visa that allows foreign nationals to work in the United States temporarily.
To qualify for an O-1 visa, you must:
- Have received a major internationally recognized award such as a Nobel Prize or Olympic Medal.
OR
- Meet three out of eight criteria Extraordinary Ability criteria.
One of those eight criteria is the "Critical Employment" criterion.
What is the Critical Employment criterion?
Let's start with the official wording in U.S. Citizenship and Immigration Services' (USCIS) policy manual describing the Critical Employment criterion:
"Evidence that the beneficiary has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation."
Let's break this down. There are two parts to the Critical Employment criterion:
- You have been employed in a critical or essential capacity
This part of the criterion is easily met if you are a founder or C-suite executive of a company. However, you can also qualify as a director, VP, or senior-level employee responsible for developing the company's core product offerings.
2. Your critical/essential employment was at an organization with a distinguished reputation
It's easy to establish that a large, well-known company like Amazon or Apple has a distinguished reputation. However, USCIS is not just looking for household name companies. Even early-stage startups can be considered distinguished. You can show your company's distinguished reputation with approved patents, partnerships, contracts, revenue, users, VC funding, press, and any other evidence that shows the company's traction.
I'm the founder of a startup with VC funding. Do I automatically qualify for the Critical Employment criterion?
No, you do not automatically qualify for the Critical Employment criterion. However, we find that most founders with VC funding do qualify because there tend to be other accomplishments that come along with obtaining VC funding.
If the only thing your company has achieved is raising VC funding, it might not be enough to convince USCIS that it is a distinguished company. However, VC funding, along with other accomplishments such as press, grants, accelerator acceptance, partnerships, proprietary technology, clientele, and more, can qualify you for this criterion.
I've held numerous critical roles at distinguished companies. Can I include all of them in my O-1 petition?
Yes! You can include numerous critical roles for this criterion. Your immigration attorney may suggest you include all of them or advise you only to include the strongest ones.
I was a Senior Software Engineer at a well-known company. Does this count as Critical Employment?
It depends. Typically the job title Senior Software Engineer does not make someone critical to a company's success. However, if you made significant contributions to the company—such as developing core technology or authoring patents—it might be possible to qualify for this criterion.
A unicorn startup has offered me a VP-level role and is sponsoring my O-1 visa. I won't start as VP until my O-1 is approved. Can I include this role in the Critical Employment criterion?
Yes! You can include the role you have been offered at the O-1 sponsoring company as Critical Employment.
Summary
The caliber of your positions throughout your career and the success of the companies you've worked for can strengthen your O-1 petition. However, Critical Employment is just one of the eight O-1 criteria. You only need to meet three criteria to get approved for the O-1 visa. Review the rest of the O-1 criteria, and consider attending one of our O-1 webinars for a closer look at the O-1 visa.
