Who Can Qualify for the O-1 Visa for Individuals of Extraordinary Ability?

Evgeny Krasnov
Mar 19, 2019 · 4 min read

Have you achieved major success in your business? Say, developed new technology that would have a big impact on a particular industry and secured a significant amount in investments to commercialize it? Or your project has received widespread media coverage and won some industry awards? Or possibly, as a result of your success, you are now frequently called on to opine on developments in the field for major media outlets and consult on ongoing projects for industry heavyweights?

If some or all of those things apply to you, and now you’d like to give it a shot on American soil, you may qualify for the O-1 visa, which is the subject of this article.

The O-1 visa is the top employment visa, reserved for individuals of “extraordinary ability in the sciences, arts, education, business, or athletics.” The U.S. government has created this visa category to attract the best and brightest individuals to continue work in their respective fields in the United States.

For some context, it should be noted that in 2015, about 500 O visas (which include other types besides O-1) were issued to Russian citizens. Of those, relatively few were obtained for achievements in business — and that is what we will focus on.

When you consider applying for the O-1 visa, the first step is to find out if you meet the basic requirements. Generally speaking, you have to be really good at something business-related — not necessarily the best, but pretty close to it.

For example, you created one of the first few successful food delivery mobile apps in the country. Or your education and experience have earned you the title of President of the Russian Ski Resort Owners’ Association (if one exists). It may be possible to qualify on the basis of one major achievement, but you will almost certainly not get the O-1 if you have no achievements that people in the industry would consider important.

To prove you qualify for the O-1, you must meet at least 3 of the following specific criteria most relevant to an extraordinary entrepreneur:

· you received an award related to your business;

· there have been articles published about you in mass media or major industry publications;

· your business has received substantial investments or won a grant;

· you have made a significant, original contribution to your industry;

· you have been invited to judge the work of other entrepreneurs in your field;

· you have served in a leading capacity at a company or organization; or

· you are a member of a prominent industry association consisting of experts in the field.

The best evidence to demonstrate the above is “objective” documentation — unsolicited news articles, certificates, diplomas, and rankings. In addition, you should obtain letters of recommendation from other distinguished businesspeople who can vouch for your achievements and explain their importance.

One feature of the O-1 is that it has a strong bias towards publicity: if you are an anonymous inventor of a revolutionary business method, it would be very difficult for you to prove your extraordinary ability to the U.S. Citizenship and Immigration Services, or USCIS.

Obviously, some documentary gaps can be filled: if you are a member of an elite industry association, but have nothing to prove it, you can always request that the association make a membership certificate for you. Failing that, you can at least try to obtain a letter from an association official confirming that you are a member.

What cannot be remedied is a complete lack of significant accomplishments: if you are a successful entrepreneur who keeps to himself, has not won any awards or developed any innovations for the industry, there’s very little that can be done to pull you up to the “extraordinary” category. Stated differently, if you are not at least in some ways close to the “first,” “best,” or “biggest,” you would probably be wasting your time.

All the necessary evidence is scrupulously gathered, formatted, signed, notarized, translated, summarized, and combined together into what’s called a “visa petition.”

This is not all, however: since the O-1 is a work visa, there must be an employer in the United States who is willing to “sponsor” you for the visa. This means the employer files the petition, in which it represents to the USCIS that it will employ you for up to 3 years. It is also necessary to provide the contract between you and the employer, or, if the agreement is oral, a summary of it. In addition, there should be an “itinerary” for your employment — your activities, goals, and target dates for the coming 3 years.

Once the petition is assembled, it gets filed with the USCIS, which makes a decision around 4–6 months later. If the employer is willing to pay an extra $1,225, you can obtain a decision in two weeks. After you receive a favorable decision, you must schedule a visa interview at your local consulate, to which you will bring your passport, approved petition, and all other required documents. Once you get your passport and visa back, you can start packing.

Gathering all the evidence for an O-1 visa can be an exacting process. But if you are ready to keep revolutionizing the business world by applying your extraordinary skills in America, it may be well worth it.

Buzko Krasnov

Law firm for founders and investors