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What You Can Do Now if You Aren’t Qualified for the O-1 Visa Yet

A guide built for startup founders who want to apply for the O-1 visa, but may not qualify just yet. 

The O-1 visa for “individuals with extraordinary ability” is one of the most popular visa options for startup founders. Why?

  • No degree requirement: Some entrepreneurs found their first startup with years of working in the field and an advanced degree. Others drop out of university to get their startups off the ground. The O-1 does not require you to have any sort of academic degree.
  • No minimum salary requirement: Many founders opt for higher equity and a lower salary. Unlike other work visas, like the H-1B, the O-1 does not have any sort of prevailing wage requirement.
  • No limit on the number of O-1s granted each year: There is no lottery system and you can file your O-1 and begin working on it at any point in the year.
  • Eligibility for premium processing: By paying an extra $2500 fee to the government, you can get your O-1 reviewed in 15 calendar days or less. Legalpad also offers a fast track option to   prepare your visa in a fraction of the time a traditional immigration attorney.
  • Unlimited status extensions: You don’t have to worry about running out of time on your visa. The O-1 is approved in three-year increments and there is a high likelihood that extensions will be approved based on USCIS's dereference policy.
  • The ability to hold numerous O-1 visas: Perhaps you’re a serial entrepreneur and you’d like to work at numerous companies at the same time. That is completely possible because the O-1 allows you to hold numerous O-1s at the same time. 

So what can you do now if you aren’t qualified for the O-1 yet?

 

First things first, if you’ve been told that you don’t qualify for the O-1, it may still be worth talking with our team. Many startup founders come to us having already been told that they don’t qualify for the O-1, when it turns out that they do! For example, one of our clients, Vicki Guan, had been told by numerous immigration attorneys that she didn’t qualify for the O-1, but we were able to get her case approved. Her advice to other immigrant startup founders is this:

“No matter the answer you get from one lawyer or even multiple lawyers, you should always look for other people who have different opinions. Don’t give up easily because there are more options than you might realize.”

Vicki is one of the hundreds of startup founders that we’ve helped secure O-1 visas for. Now let’s go into what we have learned about how to improve your qualifications for the O-1 visa after working with hundreds of founders like you.

General pointers

To get an O-1 visa approved, you need to meet three of eight criteria. The more criteria you are able to show that you qualify, the better, in case the U.S. Citizenship and Immigration Services (USCIS) officer reviewing your visa petition is not convinced of a few of them. 

Perhaps the most important thing to do moving forward is to make sure that you have sufficient documentation of all of your accomplishments. In your O-1 petition, we are going to need to include evidence to back up your qualifications for each criterion. 

If you are judging a hackathon in the future, grab any flyers that may have your name in them, take pictures at the event, and make sure you are able to find any emails, posts, or other documentation that shows that you did judge at the event. Our team uses a wide range of evidence to demonstrate you meet the criterion.

Also, keep in mind that we can use your past accomplishments as well as more recent accomplishments. Be sure to think back to any previous companies you have founded or worked for. Unfortunately, student-related accomplishments typically do not work for the O-1.

How to strengthen your O-1 profile based on each criterion

Judging
Judging the work of peers in your field, either individually or on a panel

The judging criterion is probably the easiest criterion for startup founders to meet. If you went through an accelerator or incubator, or are funded by VC firms, there is a high likelihood you can reach out to your contacts at these companies and express your willingness to sit on a judging panel for an upcoming event, such as a hackathon. 

You can also be a judge by reviewing accelerator applications, reviewing venture capital investment choices, or even reviewing academic papers if you’re in a more scientific field. No matter what you do, make sure you have documentation that you did indeed judge your peers. 

Evidence could include emails from the organization asking you to serve as a judge, flyers with your name listed as a judge, photos from the event, or a website with information about the event listing you as a judge.

Published Material

Published material about you in professional publications, major trade publications, or other major media

A strong published materials criteria would include numerous press articles about you in highly circulated news outlets, such as the New York Times, CNN, Forbes, Times of India, Nasdaq, TechCrunch, etc. 

Smaller news outlets also work, you’ll just want to make sure that they are highly circulated. To determine circulation, you can check out SimilarWeb. The higher the circulation, the more impressive it will be to USCIS. Smaller news outlets that we often use in founder O-1s include Ventrue Burn, Mobile World Live, Crunchbase News, FinSMEs, amongst others. Look for a monthly circulation in at least the tens of thousands, but ideally hundreds of thousands or millions. 

There are probably journalists and news outlets working in your industry that would love to cover your work. Reach out and see if they’re willing to do an interview with you. The more articles, the better, as long as they have a good circulation.

Opt for articles that are about you, such as an interview, over general articles about your company. If you can only get press about your company, make sure that your name is at least mentioned in the article. Press does not have to be in English, but it will need to be translated to English. Also, keep in mind that press releases don’t count for this criterion. 

Membership

Membership in associations that require outstanding achievements, as judged by international experts

Even if you do not have a membership now, it might be pretty easy to get one soon. Ideally, we are looking for an elite organization with a 5% or lower selection rate. 

In addition to general startup, business, and technology organizations, there are likely organizations for people in your niche area of expertise. Examples include On Deck, Forbes Business Council, IEEE, American Society of Mechanical Engineers, and Association for Computing Machinery.

We can also argue that business accelerators and incubators such as Y Combinator, Techstars, and 500 Startups are memberships. 

Scholarly Articles
Authorship of scholarly articles in professional publications, major trade publications, or other major media

Scholarly articles could include peer-reviewed journal articles, but more commonly for startup founders, we use articles published on business media sites like Forbes, TechCrunch, or Harvard Business Review. As with the published material criteria, you can also write articles for smaller news outlets, but bigger names will hold more weight. 

If you have not authored any articles yet, or if you have only authored a few, consider reaching out to news outlets like the ones mentioned above, or smaller news outlets that are specific to the industries you operate in. Pitch them an article idea, or even send over a pre-written article. 

The articles should relate to your work in some way. If you are the founder of a startup in the Crypto space, pitch articles about trends in the Crypto industry, tips for emerging Crypto companies, or even your own story of how you got to where you are. Send these ideas over to general startup news outlets like TechCrunch and Forbes, as well as financial Crypto news outlets like Financial Times, Cointelegraph, or CryptoSlate.

Critical Employment
Employed in a critical or essential capacity at a company with a distinguished reputation


We’re looking for two things with this criterion: (1) you were/are a critical employee (2) at a company with a distinguished reputation. 

If you are a founder of a company, you certainly meet the critical employee part of the criterion. The second part will be where we need to focus our efforts. A distinguished reputation should come naturally with your company’s growth, but if you are still in the early stages, there are still a few things you can do.

The first is getting press about your company. This will help you meet the critical employment criterion, as well as the published materials criterion (just make sure the press at least mentions your name). You can also work on getting into accelerators or getting grants or awards for your company, including venture capital funding. These accomplishments should also help with the membership and awards criteria. 

Other accomplishments that strengthen the distinguished reputation of your company include gaining new partnerships, growing your userbase, increasing the amount of downloads/reviews for your app, and anything else that might indicate your company’s success and growth. Make sure that you have documentation of all of this.

You can also include any previous roles you’ve held at other companies. The challenge with larger companies is showing that you were a critical employee, and the challenge with smaller companies is showing that the company has a distinguished reputation. 

Original Contributions
Original contributions of major significance to your field

For this criterion, we will need to show that you have created something that is original and majorly significant to the field. In many cases, this is the technology, or even business model, that your startup has created. 

Getting a patent in your name for a technology that is being widely used is the most effective way of meeting this criterion, but we all know that patents are tedious and take a long time! If you aren’t already planning to patent your invention, we can use other evidence to show that you meet this criterion. 

Evidence that your startup technology or business model is original could include patents, white papers, business plans, or even letters of testimony from experts in your field describing what makes it unique and new. Evidence of its major significance will can be similar to the evidence listed above for the critical employment criteria establishing a distinguished reputation. 

You can also include technology or business models that you created in the past at other companies.

High Remuneration
You have commanded a high salary or other significantly high remuneration

For high remuneration, we are looking for evidence that you have been paid well above others in the same role in the same city. This could include your salary from five years ago in India, the salary, bonuses, and equity you were paid out at a recent employer, or the salary and equity you will have once you secure a visa for your new startup.

A high salary will always hold more weight than a low salary with high equity, however, equity can strengthen your criteria overall. Check out Glassdoor, Salary.com, Indeed, and other websites that compare salaries. If you were paid the salary in a different country, you may need to find different sources. 

You don’t want a salary that is just above the average salary, you want a high salary that is similar to or higher than the top earners in your role and city.  

Increasing your salary overnight might not be possible for everyone, but we have seen it happen! Maybe you just raised a new funding round, and can finally raise your salary. It is worth considering it since it can strengthen your petition, however, do not raise your salary temporarily and then lower it after your visa is approved. This could negatively impact future O-1 extension applications. 

Awards
Nationally or internationally recognized prizes or awards for excellence in your field

It might be challenging to strengthen your awards criteria quickly, but there are some things to keep in mind if you have the time to do so.

The strongest awards are awards that have been offered to you as an individual. We’ll also need to show that these awards are “nationally or internationally recognized”, and were awarded to you for your “excellence in the field”. Examples of awards like this could include a Stevie Award or a Forbes 30 Under 30 award.

Since you’re a startup founder, we can also make an argument that any awards or other accolades that your company has received are your awards. This could include raising venture capital funding, or more traditional awards or grants such as a World Economic Forum New Champions award or Africa Tech Awards.

Conclusion

If you haven’t already talked to our team about the O-1 visa, it is worth filling out this form so we can give you an expert opinion on whether or not you’re qualified for it. If you have already chatted with our team and they sent you here, cheers to you for taking your immigration journey into your own hands and working on strengthening your profile! Either way, we are here to help and would love to walk alongside you as you strengthen your case. 

About the author:

Annie Blay

Content Marketing Specialist

Before joining the marketing team, Annie helped over 60 Legalpad clients navigate U.S. immigration on the client services team.