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Escape From H-1B Hell: 5 Things Immigrant Entrepreneurs Can Do Right Now to Hack Their Own O-1 Visas.

[Did you click here from Hacker News? Welcome! This post is as fresh and current in 2017 as it was in the HN link. Thanks for visiting!]

O-1 Visa Petition Snapshot

1. H-1B Hell Season and the Helpless Surrender of Agency.

So the die’s been cast for the 2016 H-1B visa lottery. The US Immigration Service just announced that of the 236,000 H-1B applications they received in the first week of April, they’ve already selected, by random lottery, the 85,000 lucky applicants who get to proceed with their H-1B work visa petitions.

The 36% of winners get to work in the United States for 3 to 6 years. Stay here with their friends and colleagues. Do cool stuff. Maybe get in line for their green cards.

And the 64% of losers? Well, tough luck. Try again next year. Not too many other US work visa options out there.

Welcome to H-1B Hell Season. Your petition’s been filed. It’s gone down the H-1B lottery black hole of doom. It’s either been selected … or not. You don’t know. Nothing to do but sit and wait, hope and pray.

Meanwhile, your whole life’s on hold. You don’t know whether you’ll be staying or going. The dread keeps you awake at night. You cry in the bathroom so no one will hear. You just got invited to your best friend’s summer wedding, and you don’t know how to RSVP, because you don’t know whether you’ll be here or not. How do you plan a lunch date – much less your entire future – when you don’t know what country you’ll be living in?

But the most agonizing part? Even worse than all that? It’s the lack of control. The helplessness. The randomness.

All your hard work, your hustle, your ingenuity, everything that got you here – it counts for nothing. It can’t help you. It makes no difference. It’s a freakin’ LOTTERY. Just random selection. Nothing you can do but sit and wait.

THAT is the hardest part.

2. Why the O-1 Visa Is a 100X Better Choice for Immigrant Entrepreneurs – And Why They Don’t Use It.

The O-1 work visa – for individuals of “extraordinary ability” in business – looks like a US visa paradise for entrepreneurs, compared to the forced helplessness, pointless complexity, and absurd contortions of the H-1B process.

The O-1 visa can last for 3 years, and it’s renewable indefinitely. There’s no cap.

It can be structured to have founders hired by their own companies.

There’s no minimum salary requirement.

The terms of employment can be pretty flexible.

You don’t need a college degree.

Best of all, you can use your O-1 evidence to apply for a fast-track green card – with NO BACKLOG for any country including India and China.

This is an amazing set of advantages, especially compared to all the other truly crappy, horrible, no-good US visa options out there.

So why aren’t founders and entrepreneurs lining up to apply for O-1 status?

Mostly, because the qualification process is completely opaque.

There’s a ridiculous mystique built up around the O-1 “extraordinary ability” visa. The law requires “a level of expertise indicating that the person is one of the small percentage who have risen to the very top of the field of endeavor.” You can easily get an O-1 visa by winning a “major internationally recognized award,” like a Nobel Prize.

At this point, most people’s eyes glaze over, because the O-1 visa looks so out of their league. The media feed this perception with an aura of secrecy, allure, mystery, and exclusivity – dubbing it the “genius” visa, the “rockstar” visa, and the “special snowflake” visa.

This is nonsense. It’s perfectly true that Nobelists, Olympians, and Oscar winners qualify as “extraordinary.” But so do lots of other accomplished people. You can qualify for an O-1 by meeting 3 out of the 8 “other” criteria that US immigration uses to measure “extraordinariness.” Here they are, reordered and translated into human language:

1. Original, major contributions to your field.
2. Having an important job at a well-known organization.
3. Media coverage of your accomplishments.
4. Winning some competitions.
5. Making a lot of money.
6. Exclusive, invitation-only memberships.
7. Judging some competitions.
8. Writing some articles.

Compiling evidence in 3 of these 8 categories isn’t super-easy. But it’s not that hard, either. If you can get accepted into a prestigious program, start your own company, get funded, or create an amazing product, you can totally do this.

It’s a question of following the right template. Like everything else in US immigration law, the O-1 visa requirements are extremely rigid, categorical, and arbitrary. To compile a winning petition, you have to follow a specific formula.

It’s like writing a business plan, or building a good pitch deck. You drill down to understand exactly what your audience is looking for. Then you give them a super-premium product, in exactly the format they want. Once you figure out your audience and your format, creating a winning O-1 template for an entrepreneur is perfectly straightforward.

Unfortunately, there’s no resource out there right now that explains in detail, what that template might look like. I’d like to change that.

Is compiling an O-1 petition a lot of work? Yes. Is it still easier than the horrible tortures of the H-1B and other broken visa options? YES! It’s actually not that difficult for a creative, ambitious, accomplished person to compile, once you know how to do it.

Best of all, it rewards ACTION. It requires that you DO things. And the quality of those things, has a direct impact on the success of your O-1 petition. Unlike the rest of US immigration law, there’s actually a cause-and-effect relationship, between your efforts and your results.

Compared to the helpless randomness of the H-1B lottery, this is a huge relief. It’s also an energizing, exciting, hope-reviving motivator.

3. Reverse-Engineering the O-1 Petition: Visualizing What a Winning Case for an Entrepreneur Looks Like.

90% of losing O-1 visa petitions have one thing in common. They’re prepared passively, not actively. They’re a haphazard collection of evidence that already exists, no matter how unpersuasive, low-quality, or tangential it might be. They’re cobbled together from random stuff that happened in the past, that seems vaguely to fit in a category. They don’t have a narrative.

In this passive (and losing) approach, the 8 categories are just a rote list that you go down, with each O-1 element having equal weight. OK, we have two awards, three media articles, one exclusive membership, stop, we’ve hit the minimum, let’s file.

This is not a good way. You won’t be doing it that way. Instead, you’ll be taking an entrepreneur’s approach to the O-1 visa.

You’re going to compile it forward, not document it backward. You’re going to reverse-engineer it.

You’ll design it, then build it, based on a visualization of what an OPTIMAL O-1 petition would look like for a person in your situation. You’ll be aiming for the maximum, not the minimum.

You’ll be leveraging the cool stuff that you’re already doing out in the world, and building out your O-1 category evidence, at the same time that you’re building your business and your product. Since you’re doing world-changing things anyway, you might as well do them in a way that gets you an O-1 visa, right?

With this active approach, you can compile an amazing, high-quality package that delights your adjudicator and elicits a quick YES to your O-1 petition.

Do you need an immigration lawyer to do this? Yes, you do, but LATER. What I’m about to tell you, is the checklist of stuff that an experienced O-1 lawyer will tell you to go out and do anyway. You might as well do it now, and use your own initiative, hustle, and creativity to compile a great package. It’s never too early – or too late – to start. With portfolio in hand, you can approach your lawyer with confidence, and get your O-1 work visa a lot faster.

Equally important – you know those job openings that say they’ll sponsor qualified applicants for H-1B, TN, or O-1 visas? If you’re an entrepreneur, maybe you don’t want a job. But if you do, how cool would it be to show up for your job interview, with your O-1 qualifications in hand?

Just sayin’. Let’s get started.

3A. Building the O-1 narrative for your “entrepreneur’s story.”

A successful O-1 petition always tells a compelling story of the applicant’s rise to extraordinariness. For a founder or entrepreneur, it’s a variation on one simple storyline: Here are the awesome things I’ve made, how they’ve changed lives, and the acclaim I got for making them.

The challenge here, is sketching out your great success narrative in the “language of categories” – the rigid and unforgiving legal requirements of the O-1 regulations. For storytelling purposes, the 8 categories are NOT created equal. They need to be broken down, reordered, and deployed strategically, depending on whose story is being told.

An “entrepreneur’s story” has a completely different category weighting than an athlete’s story, an academic researcher’s story, or a Fortune 500 CEO’s story.

For the entrepreneur’s story arc, the 8 categories break down as follows: 2 “accomplishment” categories, 4 “acclaim” categories, and 2 “giveaway” categories. Most winning petitions have strong, high-quality evidence in at least 5 categories, not the minimum 3.

3B. Your 1 base “accomplishment” category: “original contributions of major significance.”

The foundation of the entrepreneur’s O-1 story is 1 of the 2 “accomplishment” categories:

• Original contributions of major significance to the field of endeavor as a whole.
• Playing a critical or essential role for organizations with a distinguished reputation.

These are the 2 categories that say, I’ve actually DONE something in the world, and here’s what it is. A winning O-1 business story is built on the foundation of at least 1 “accomplishment” category. If you don’t have one, then your adjudicator is left to puzzle out what it was you actually DID, to attract all this acclaim. Failing to nail this question is the first step down the road to O-1 hell.

Most entrepreneurs’ accomplishments will fall in the “original contributions” category, not the “critical or essential role” category. Many young founders have already made “original contributions of major significance,” or are well on their way to doing it. It’s a criterion that’s achievable, relatively early in an entrepreneur’s career.

The other “accomplishment” category, playing a “critical role for distinguished organizations,” is more appropriate for senior executives, venture capitalists, and industry leaders who are well-established on their career paths. If that’s you, by all means use this category! Here, though, we’ll be focusing on “original contributions” as the base category for an entrepreneur.

3C. Your 2 “acclaim” categories: “media coverage” and “prizes / awards.”

Continuing your entrepreneur’s narrative, you can build upon your foundation category of original contributions, with items in at least 2 of the 4 “acclaim” categories:

• Media coverage of you and your accomplishments.
• Prizes and awards for excellence in the field.
• High salary in relation to others in the field.
• Membership in associations that require outstanding achievement.

These 4 categories add critical elements of social proof to your O-1 story. They’re the categories that say, here’s the buzz I’ve gotten for the cool things I’ve built. The “acclaim” categories can document the significance of your achievements, place them in context, create hierarchies and pyramids, and paint a vivid, technicolor evidence-picture of your rise to the top.

For founders and entrepreneurs, the 2 strongest “acclaim” categories are usually media coverage, and prizes / awards. Their big advantage: YOU have complete control over the quality and quantity of the evidence you compile. The harder you hustle for media coverage and business competition wins, the bigger the payoff for your O-1 petition.

Having some high-visibility media coverage of your “original contributions” – the more the better – is pretty much required for a winning petition. And if you’ve really got something buzzworthy, it’s not too hard to attract some press.

Prizes and awards – in prestigious startup competitions, pitch competitions, and other contests that you can enter to win – also have a huge O-1 payoff, and you should seek out as many high-quality ones as possible. If you don’t win, no harm done.

What about the other 2 “acclaim” categories: high salary, and exclusive memberships? These are the categories that you have the least control over. If you do happen to be making bank, then definitely claim the high salary!

As to exclusive memberships, some industries have these elite professional clubs, and some don’t. If your industry has one, then definitely apply for membership in it. Acceptance into a prestigious accelerator program also might qualify – although it might fit better in “prizes / awards.” For mysterious reasons known only to USCIS, “exclusive memberships” is one of the hardest criteria to meet, so it might not be an effective use of resources to spend a lot of time on it.

3D: Your 2 “giveaway” categories: judging competitions and writing articles.

There are 2 categories that EVERY entrepreneur should have, because in O-1 business cases, they’re ridiculously easy to satisfy compared to the other categories:

• Judging the work of others in the field.
• Authoring scholarly articles in the field.

Again, for mysterious USCIS reasons, evidence for business cases in these 2 categories is evaluated by very generous and lenient standards, compared to the truly absurd level of nitpicking seen in the other 6 categories.

The criteria are pretty straightforward. “Judging the work of others” means volunteering for panels to judge business competitions, pick startups for accelerator programs, perform peer review, or evaluate the work of others in your field.

“Authoring scholarly articles” means publishing articles in your field that are aimed at technical, professional, or industry audiences. It can also include writing columns or blog posts in your area of expertise for general audiences.

These 2 activities are so ridiculously easy to do, that you should do a LOT of them, start right now, and aim for high visibility. Their payoff for your O-1 petition is so high, compared to your time and resource investment, that they really are your “secret weapon” for leveraging a successful petition.

Best of all, YOU have 100% control over the quantity and quality of the evidence you compile in these 2 “giveaway” categories. The more you hustle at judging competitions and writing articles, the higher your chances of O-1 success.

3E. Putting it all together: a quick snapshot of an entrepreneur’s winning O-1 evidence portfolio.

OK, so that gives us 5 solid categories to start with: Original contributions, media coverage, prizes / awards, judging, and authorships. Here’s a quick sketch of what a winning evidence package might look like for an entrepreneur, using these categories. More exhibits are always better – but here’s a baseline for a winning case.

  1. Original Contributions to Your Field. 20 to 30 exhibits showing your CV, your website, your product, its originality, its impact on the world, how it’s changed your field, how people use it, and how it’s changed lives.
  2. Media Coverage. 5 to 10 high-quality articles about you, your company, and your product, in well-recognized media channels. Evidence showing the prominence and circulation of each publication or broadcast.
  3. Prizes and Awards. 4 to 6 national-level prizes or awards won by you / your company, including awards of VC funding. Evidence showing the prestige of each award.
  4. Competitions You Judged. 5 to 7 instances of you sitting on a panel (or solo) to evaluate work in your field, judge competitions, or perform peer review.
  5. Articles You Wrote. 5 to 10 articles that you’ve published in your field, aimed at a technical or professional audience, as well as columns and blog posts in your area of expertise.

That is the core of what a winning O-1 portfolio looks like. And yes, you can build the whole thing yourself.

4. Get Stoked! The Five Things You Can Do RIGHT NOW to Take Action, Reclaim Your Agency, and Start Building Your Winning O-1 Petition.

  1. Make a dent in the universe. Build your product. Ship it. Make a ruckus. Change the game. You’re already doing that anyway, right? Start collecting some very specific examples of how your product has changed lives, disrupted your industry, replaced an old way with a new way, or set a new standard for how stuff gets done.
  2. Get some media buzz. Make friends with some journalists. Pitch some stories about your company. Hire a publicist. Get known. Start collecting articles that appear about you and your company.
  3. Enter some competitions. Find some high-visibility contests, and start entering them. Pitch competitions. Startup Weekends. Prestigious accelerators. Forty Under Forty. VC funding. TED talks. Document your collection of prizes and awards.
  4. Judge some competitions. Volunteer for some judging panels, in all the same areas.
  5. Write some articles. Publish some techie articles for a techie audience. Then publish some columns and blog posts in your area of expertise for general audiences.

That’s all you have to do? Yes, for now, that’s WHAT you have to do … but it’s ALL you have to do. You can jump in and take action right now. Reclaim your agency. Regain control of your future. Wrestle your fate out of the H-1B black hole of doom. You don’t have to sit idly by, gnawing your fingernails, hoping and praying that you win the lottery.

You can use your own intelligence, hard work, hustle, resourcefulness, and initiative to compile a good solid portfolio of exactly the evidence that will win you an O-1 visa. You can make the laws of cause and effect actually work again.

You might even make your American dream come true. And how cool would THAT be?

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Are you stuck in H-1B hell, waiting for lottery results? Or in another ring of US immigration hell? Would it be useful to you, to learn how to hack your own O-1 visa instead? Please let me know in the comments. I can’t give individual legal advice, but I’d love to start this conversation, and build some tools that would be helpful to you. Thanks!

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I’m a lawyer, but this column isn’t legal advice, and it doesn’t create an attorney-client relationship.

This Post Has 2 Comments
  1. This is great. Thank you Mary. I really appreciate when lawyers can explain complicated topics into simple language. Very nice and clear analysis.

  2. very knowledgeable article about O1A immigration for would be/probable- high achievers. i am trying for this visa in this category , luckily came across this article on internet search. The rules are flexible for O1A , if one is confident ,can give a try.

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