US VisaBuilder for the Tech Industry: Home

It’s true, the US doesn’t have a visa category for entrepreneurship. It’s ridiculous and crazy, how hard it is for non-US founders to build companies here.

The structure of our current US immigration law dates back to 1990. That was over 30 years ago. It was before the world wide web!

Our work visa categories are hoary old fossils. The visa processing system is an ancient, lumbering dinosaur.

And no, it definitely doesn’t include a nice practical visa category for immigrant founders to start businesses in the United States.

So what does a smart entrepreneur do, when confronted with an archaic system like this? Hacks and workarounds, of course. You work within the system you’ve got, to get the result you want. I’ll show you how.

As you know, the brutal truth is that it’s not possible. The H-1B is a highly restrictive category that prohibits paid side work of any kind. This is the “H-1B handcuffs” problem, and there’s no easy answer in our outdated catalogue of work visas.

Like the immigrant entrepreneur seeking a startup visa, you’ll be applying the Urban Dictionary’s definition of “hack”: to solve a problem “in a clever, virtuosic, and wizardly manner.”

Well, the options aren’t great. Let’s take a look at some of the categories that non-US entrepreneurs might consider. All of these “alphabet soup” work visa categories have a lot of restrictions and hoops to jump through. Most of them just don’t work for immigrant entrepreneurs. For example,

H-1B. Requires job offer from established employer. Can only work at that job. Requires college degree. Strict wage requirements. No self-employment. Six-year max time limit. Only 85,000 slots available via lottery per year, so two-thirds of applicants don’t get one. High filing fees.

TN “Treaty” Visa. Only for citizens of Canada and Mexico. No self-employment. US job offer required. College degree required. Only available for a specific list of occupations. Subject to re-scrutiny at border, making travel stressful.

L-1 Intracompany Transferee. Used for transfers from overseas office to US office of the same company. Must have worked at overseas entity for 1 year. Very strict occupational requirements. Can be used by startups if structured correctly. High denial rate, especially for new US offices. 5- to 7-year max time limit.

E-1 Treaty Trader. Used by citizens of specific “treaty countries” for “substantial” trade between US and home country. 50% of sales must be to treaty country. Application requires voluminous paperwork. Useful for startups that meet these criteria.

E-2 Treaty Investor. Used by citizens of treaty countries to run US companies they own. Applicant must prove “substantial” capital at risk from personal assets – not loans or VC funding. 50% of company must be owned by citizens of treaty country. Must prove “substantial” US operations and revenue. No set investment amount, but as a practical matter, at least $100K of real capital at risk. Very voluminous paperwork required. Useful for owner-funded companies with some traction.

O-1 “Extraordinary Ability.” Requires “sustained national or international acclaim” showing that applicant is “one of the small percentage who has risen to the very top of the field of endeavor.” Requires substantial evidence in at least 3 of 8 specific categories showing acclaim, such as media coverage, awards, high compensation, and the like. Employment terms flexible. Can be structured for self-employment by own company. No degree requirement. No wage requirement. Renewable indefinitely. The same evidence portfolio can be used to obtain a fast-track EB-1A “extraordinary ability” green card.

Long story short, the O-1 looks like one of the hardest work visas to get, compared to these other categories. But for founders and entrepreneurs, it’s actually easier to build an O-1 evidence portfolio proving “extraordinary ability,” than it is to try to squash your project into one of these restrictive categories.

Maybe. This is actually the government’s own hack for solving the no-startup-visa problem.

The “entrepreneur parole” status is designed for one specific use case: A fast-growing, job-creating US startup with significant backing from a traditional US venture capital firm or US-source grant money.

The investment can’t be bootstrapped by the founders. The amount must be at least $264K from a traditional VC firm with a track record, or alternatively, at least $106K from a US-source government grant.

The applicant must have a minimum 10% ownership interest, a relevant skillset, and a “central and active role” in running the business. The entity must demonstrate “substantial potential for rapid growth and job creation.”

If this fits your situation, it’s an OK but not great solution. The duration is 2.5 years, renewable once for a total of 5 years. It’s not being used much, because it’s such a fragile, unreliable solution.

Parole isn’t technically a visa status. It’s a temporary admission for a specific purpose. Traditionally it’s used for humanitarian purposes like medical care.

Good question! Here’s a snapshot of what you get with each one, and then a comparison of their pluses and minuses.

O-1 Work Visa. An O-1 “extraordinary ability” work visa is a “nonimmigrant” or temporary status. Just like the H-1B, the L-1, and other temporary work permits, there’s a set expiration date. You’re expected to depart the United States when the status expires.

You can renew your O-1 indefinitely, but approval’s not guaranteed, even if you’ve been here in O-1 status for years. Renewals are expensive, and the uncertainty can be stressful.

EB-1A Green Card. The EB-1A “extraordinary ability” category is an “immigrant visa,” or green card, that grants permanent US residence. Once you get one, you’ve got it for life (unless you move away permanently or commit a serious crime).

With a green card, you can live here forever, work at any job (or no job), travel freely in and out of the US, easily launch multiple ventures, and sponsor relatives for green cards too. Having a green card is also a prerequisite for US citizenship.

The qualifying criteria for the O-1 and the EB-1A sound almost identical, and in fact they are. As a practical matter, though, EB-1As get a tougher level of scrutiny and are held to a higher standard.

The O-1 is much faster to get – as soon as 3 to 6 weeks after the case is filed. The EB-1A takes longer because of the paperwork, background checks, and interviews required. The EB-1A green card category has also become slightly backlogged recently. So it can take anywhere from 6 to 24 months.

Comparison. Which one is right for you? Founders and entrepreneurs often start their US companies in temporary O-1 status, because it’s much faster and easier to get than a green card. They then file for their EB-1A green card while they’re here in O-1 status.

They can use the O-1 evidence portfolio as a “trial run” or foundation for the green card filing. There are definitely situations where the O-1 is unnecessary, and you’d be better off going straight for the EB-1A. For example,

Your overseas company is successful enough for you to prove “extraordinary ability” already, and you’re not in a hurry to move to the US.

You’re here already in another work visa status, like H-1B or L-1. Your work allows you to build your own “extraordinary ability” portfolio at your leisure. You’re not in a hurry to quit your job or start your own company.

Your spouse needs to work, and you’re not in a hurry. One disadvantage of the O-1 is that the accompanying spousal visa, the O-3, doesn’t allow work. In this situation the EB-1A might be a better option.

For many entrepreneurs, there’s no downside to doing the O-1 first. It’s a great test case for your EB-1A green card, and you can get going right away.

No, definitely not. From the government’s point of view, these are two completely separate and different processes. You can apply for the EB-1A green card from lots of different situations.

For example, you might be here in F-1 student status. You might be working for a US employer on an H-1B. You might be outside the United States and applying for the EB-1A without ever having a US temporary work visa.

There are a few advantages to having O-1 status first. It creates a subliminal impression of “pre-approval” since you’ve already submitted similar evidence – even though the level of scrutiny is higher for the EB-1A. Also, it gives you a head start in compiling your “extraordinary ability” portfolio.

No. The process streams for the O-1 and the EB-1A are completely different and separate from each other. USCIS calls these “product lines.”

There’s a distinct set of product lines for nonimmigrant, or temporary, work visas, like O-1s, H-1Bs, L-1s, and TNs.

There’s a totally different set of product lines for immigrant visas, or green cards, like EB-1A extraordinary ability, EB-1C multinational manager, and EB-2 specialty worker.

These lines don’t cross. There’s no procedure for accruing “credits” toward a green card, by holding any nonimmigrant status for any period of time.

That said, the accomplishments that got you the O-1 visa, and that you continue to achieve in O-1 status, can be used as evidence for your EB-1A green card petition. It’s just a completely separate filing procedure.

There’s no set time limit. Strategically, it’s best to file your EB-1A when your “acclaim” is highest. If your O-1 evidence is very strong, and your career is peaking, you can go ahead and file the EB-1A petition right away.

For many applicants, though, it’s more strategic to use the O-1 status as a springboard to gather additional evidence of “extraordinary ability” for your EB-1A filing.

No. Compiling a successful petition for ANY immigration category has already been totally gamified by the government. The rules are so rigid, so opaque, and so unforgiving, that if you can’t play THEIR game at a high level of skill, you have no chance of success. None. Seriously.

As for the O-1 and EB-1A specifically, they definitely can’t be “gamed” with low-quality evidence or BS. Adjudicators see these crappy petitions all the time. “Oh, another O-1 applicant who can’t qualify for an H-1B or an L-1? So they applied for an O-1, submitted a few pieces of garbage evidence in 3 categories, and claimed they were extraordinary? I don’t think so. DENIED.”

The VisaBuilder method is the opposite of that. It’s about submitting the maximum, not the minimum. For entrepreneurs, compiling a great, high-quality evidence package is actually easier, from a business standpoint, than any of the other alternatives out there.

With VisaBuilder, you actually will become “extraordinary.” When you submit a great, easily approvable petition, everyone wins! You get your visa, we all get the huge benefits of your being here, and the integrity of the visa system is reinforced.

Maybe! The traditional use case for the national interest waiver is an applicant who works for a US government agency, a government contractor, or a nonprofit, and whose work serves the US “national interest” in a specific, quantifiable way.

More creatively, many applicants have successfully proven that their work in private enterprise serves a strong national interest. The NIW can be advantageous because it doesn’t require a job offer from a US employer.

USCIS has recently made national interest waiver cases eligible for “premium processing” or expedited adjudication, potentially ending the long NIW backlog in processing time.

However, the national interest waiver is a poor choice for applicants from India, China, and other countries with a green card priority date backlog. Its class is EB-2, the same as an EB-2 labor certification. Even if your petition is approved quickly, you could be waiting in line for 50 years for a current priority date. 🙁

In that situation, it’s actually easier and faster to build an “extraordinary ability” portfolio, even if your work serves the national interest. The EB-1A category has historically been current (no waiting time). It’s recently become slightly backlogged for applicants from India and China, with wide fluctuations from month to month. It’s still a much better bet than any other alternative.

Oh my goodness, no. Go apply right away for your “immediate relative” green card. Then go forth in peace, love your spouse, do great things, and enjoy your life!

Here’s the rule and the list of 8 criteria, as stated on the USCIS website. They’re not explained in a very helpful way. But the regulations are always our starting point. They’re your adjudicator’s starting point too.

The O-1 visa requires proof of extraordinary ability in the sciences, arts, education, business, or athletics.

“Extraordinary ability” means “sustained national or international acclaim” and “recognition for achievements” showing that the applicant is “one of the small percentage who have arisen to the very top of the field of endeavor.”

Extraordinary ability can be proven by either (1) receipt of a major, internationally recognized award, like a Nobel Prize, or (2) evidence in at least 3 of the following 8 categories.

•  Nationally or internationally recognized prizes or awards for excellence in the field of endeavor.
• Membership in associations that require outstanding achievements, as judged by recognized national or international experts in the field.
• Articles in “major media” about the applicant and their work.
• Original scientific, scholarly, or business-related contributions of major significance in the field.
• Authorship of scholarly articles in professional journals or other major media in the field.
• A high salary compared to others in the field.
• Serving as a judge of the work of others in the field.
• Employment in a “critical or essential capacity” for organizations and establishments with a distinguished reputation in the field.

So what does this mean, and what kind of evidence does it require? Answering this question is what VisaBuilder is all about.

No, these visas are not just for the “1%.” There’s a lot of understandable confusion about the standards for “extraordinary ability.” There’s no resource that really lays this out in a practical way.

Yes, the super-top people in their fields definitely qualify. But LOTS of other talented folks do too! It’s a question of understanding how the adjudication process works, below the 1% level, and how examiners decide these cases.

Below the Nobel-Prize level, applicants must meet a minimum of 3 out of 8 categories showing “extraordinary ability.” So in any given field, from the top 2% to, say, the top 20%, the adjudicator will be checking off boxes.

Original contributions, check. Awards, check. Media, check. Publications, check. Judging, check. High salary, check.

The petition has multiple good solid items in all these categories. The quality and quantity of the evidence shows “sustained international acclaim.”  Hey, this person must be extraordinary. Approved!

Maybe you’ve noticed that the 8 categories are kind of arbitrary and rigid. You’d be right. They are. And that can work to your advantage. Understanding the template, and helping the adjudicator check off as many boxes as possible, is WAY more important than being a “genius.”

For more on this topic, check out the “O-1 / EB-1A Quick-Start Guide” at the top of the page. It goes into more detail about the strategies for structuring a winning case.

Yes. It’s kind of a sliding scale. The higher the quality of your evidence, the lower the quantity, and vice versa. Remember that overall, the evidence must show “sustained national or international acclaim.” This is a subjective standard, but the adjudicator knows it when he sees it.

Does the package, overall, make you “look big”? Is it clear that you’re playing in the major leagues? Or does it make you look like a small-time local operator?

The regulations require evidence in 3 categories, minimum. Many applicants just throw some exhibits together in these minimum 3, then claim they’re extraordinary. That’s a recipe for a losing petition.

With the VisaBuilder system, you’re aiming for the maximum, not the minimum. You want high-quality evidence in at least 5 categories, more if possible. If you don’t have it yet, go out and get it. It’s not that hard, especially for initiative-taking entrepreneurs.

Some of your categories will be stronger, others not so much. That’s OK. For example, if your “major media” category includes articles about you in the New York Times and Fast Company, you might only need one item in the “original contributions” category.

Or if you’ve been accepted into a prestigious accelerator, like Y Combinator or 500 Global, you can use that in the “prizes and awards” category, and you might not need to show a “high salary” or a “leading role” in your previous job.

The O-1 is a temporary or “nonimmigrant” visa. You get to:

• Live in the United States for the duration of the visa.
• Travel freely in and out of the US on your O-1 visa.
• Work in the United States under the exact terms spelled out in your O-1 petition, but not elsewhere.

The O-1 application gives you quite a bit of leeway to set the terms of your own employment. You can structure it to work for your own company, to freelance for other companies, or both. However, these terms must be explicitly spelled out in advance in your O-1 petition. You can’t just decide later to go do something else.

(Well, you can, but you’d need to file an amended O-1 petition, and that’s really a hassle. Or you could file a new petition, and hold 2 O-1 visas simultaneously, which is perfectly permissible.)

Yes. O-1 is one of the few categories that can be structured so that your startup company can sponsor you for a work visa.

It’s best to structure your company as a standard Delaware C-corporation, with multiple founders and investors if possible.

The “bigger” your company looks, the more smoothly this process goes. A formal corporate entity is a better structure than a single-member LLC.

The O-1 does require a separate entity as the petitioner, even if it’s a single-member LLC. Self-sponsorship isn’t permitted.

Your initial O-1 visa can be structured to last for a maximum of 3 years, and I highly recommend that you do this!

The O-1 regulations say that you can “renew” your original O-1 visa in 1-year increments. This is a hassle. A better alternative is to file a “new” O-1 petition for the full 3-year term. This requires good legal advice and careful timing.

Either way, there’s no limit on the number of sequential O-1 petitions you can file, and no maximum time period you can be here. You could stay here and file your O-1 over and over for the rest of your life, if you wanted to.

Yes, your spouse and unmarried kids under 21 can come to the United States too. They’ll get O-3 “dependent” visas for accompanying immediate family members. They can also live here for the duration of their visas, go to school, and travel freely in and out of the US.

Regrettably, the O-3 visa doesn’t allow the spouse to work.

Once you’ve compiled the O-1 evidence package that shows you’re “extraordinary,” here’s what you do with it.

• Take your package to a qualified immigration attorney, who will help you structure and file your O-1 petition with USCIS.
• Work with the attorney to structure your employer(s), terms of employment, and planned activities in O-1 status. (These are required elements.)
• Finalize and file your O-1 petition, which consists of Form I-129 “Petition for Nonimmigrant Worker,” filing fees, required elements, attorney’s cover letter explaining your evidence, index, and O-1 evidence package.
• When USCIS approves your O-1, you’ll receive an original I-797 “approval notice.” You’ll use this notice to apply for an actual O-1 visa, placed in your passport, at the US embassy or consulate in your home country. The visa allows you to travel to and from the US in O-1 status.
• When you enter the US for the first time in O-1 status, you’ll receive a paper or electronic “Form I-94 Arrival-Departure Record.” This document is your actual proof of work authorization in O-1 status.
• There are alternative procedures for applicants who are already in the US to “change status” from their current visa status, such as F-1 or H-1B, to O-1.

Yes. This isn’t required by any law or regulation. But as a practical matter, the law is so complicated that it’s virtually impossible to successfully obtain an O-1 visa without a qualified immigration attorney.

Your costs will mainly consist of government filing fees and attorneys’ fees.

The basic O-1 filing fee is currently $1055-$1655. Check the USCIS fees page for Form I-129, as these change frequently.

The USCIS filing fee for expedited “premium processing” (adjudication within 2 weeks) is $2805. Again, check their page for updates. Premium processing is highly recommended. This isn’t the place to economize!

Attorneys’ fees for a high-quality immigration lawyer to file an O-1 petition generally range from $5,000 to $15,000. Again, this isn’t the place to cheap out. Hire the best lawyer you can afford. It’s an investment in your future.

This fee range includes the attorney’s time working with you in depth to develop your O-1 storyline and compile your exhibits from scratch. If you’ve done a good job preparing your own approvable O-1 evidence package, you might (or might not) be able to negotiate a discount.

If you use the USCIS “premium processing” service ($2805), they’re required to adjudicate your petition within 2 weeks. As a practical matter, it can take up to 4 weeks or so, but that’s still pretty good.

If you don’t use premium processing, your O-1 petition can take up to 3 to 6 months or longer for USCIS to adjudicate.

While your O-1 petition is pending, you can check your case status online.

Your attorney files your O-1 petition by sending it to the address listed here, which is presently the USCIS Texas Service Center. As of mid-2024, USCIS filing procedures are in a chaotic uproar transitional period. Instructions change frequently.

TSC scans the petition and forwards it for adjudication, generally to the California Service Center or the Vermont Service Center, the two USCIS regional service centers that traditionally handle O-1 petitions.

The O-1 petition can also be filed online. Given the volume of evidence accompanying an O-1 petition, this can be a hit-or-miss proposition, since the system’s designed for much smaller uploads.

Your petition’s queued for processing in the order received. When it’s your turn, your petition will be adjudicated by a single “Immigration Services Officer” who’s (hopefully) received special training in deciding O-1 petitions. ISOs are career civil servants. They’re usually not attorneys.

The ISO will first review your filing for required elements, then examine your O-1 evidence package to see whether it meets the “extraordinary ability” standard.

The ISO can either:

• Approve your petition.
• Send you a “Request for Evidence” asking for more information. These are common, and getting one doesn’t necessarily mean there’s anything wrong with your case. You’ll work with your attorney to supply the items requested.
• Send a “Notice of Intent to Deny.” These are issued when the case is missing an obvious required element – for example, when evidence is submitted in only 2 of the O-1 categories instead of the minimum 3.

When the ISO approves your case, you’ll receive an I-797 “Approval Notice,” and your attorney will work with you to complete the steps needed to start work in O-1 status.

Statistically, O-1 visa petitions overall have about a 66% to 75% approval rate, which means a 25% to 33% denial rate. This is a fairly high percentage of denials, compared to other categories – but it includes many low-quality O-1 petitions that are clearly not approvable.

A high-quality, multi-category O-1 evidence portfolio, meticulously organized and presented, has a much higher chance of approval – perhaps 85% or so.

Why isn’t it closer to 95% or 99%? Can’t you make your package so good that approval is virtually assured? Well, you should always try! Chance favors the prepared mind and all that. VisaBuilder is all about optimizing your evidence and your odds.

However, there’s just a stubborn element of arbitrary pig-headedness in the adjudication process, that the applicant can’t control or change. You can have a super-approvable petition, with a ton of solid evidence, that just lands in the wrong place at the wrong time.

If your case gets denied, it’s hard not to take it personally. But it’s totally possible that it wasn’t about you at all – you just got caught in the system on a bad day.

Yes, this is infuriating and unfair. But you, the smart applicant, won’t waste time worrying about that – you’ll just play their game, by their rules, to give them what they want, so you can get what you want. If this requires a Round 2, with a new improved O-1 petition, that’s what you’ll do.

There are no lasting bad consequences from an O-1 denial. Legally, all this means is that USCIS found the evidence in THIS petition insufficient to show O-1 status. There’s no limit to the number of subsequent petitions you can file, for O-1 or any other status.

Should you appeal the denial? No, never appeal a denial! Even if the decision was obviously stupid and wrong, do NOT use their appeals process to set this right. It takes about a year, and the success rate for appeals is about 5%.

Instead, add more evidence to your existing O-1 portfolio, especially in the categories that were the subject of the denial. Then just refile it as a new O-1 petition.

Yes, this is a hassle, and it’s expensive. But it’s the most efficient way to get what you want.

Yes. Over the last few years, attorneys have seen a strong trend of escalation in ridiculous USCIS Requests for Evidence, followed by wrongful denials, in very strong, well-documented cases. The normal appeals process does nothing to deter this lawless behavior.

However, a wrongful USCIS denial can be challenged directly in federal district court. In the past, it was rare to invoke this “nuclear option.” Now, though, a federal court challenge almost always prompts USCIS to reverse the denial and approve the case right away. They don’t want to go before a judge, and try to defend the indefensible.

This is especially effective for strong cases that are denied by a rogue officer with a history of unwarranted denials. In this “bad apple” situation, a federal-court challenge has become the de facto appeals process. It’s proven to be very effective.

According to the USCIS website, the EB-1A requires proof of “extraordinary ability” through “sustained national or international acclaim,” with recognition of achievements “through extensive documentation.” It requires either (1) receipt of a “major, internationally recognized award,” or (2) evidence in at least 3 of the following 8* categories.

• Receipt of nationally or internationally recognized prizes or awards for excellence in the field.
• Membership in associations that demand outstanding achievement of their members.
• Published material about you in professional or major trade publications or other major media.
• Judging the work of others, either individually or on a panel.
• Original contributions of major significance to the field.
• Authorship of scholarly articles in professional or major trade publications or other major media.
• Performance of a leading or critical role in distinguished organizations.
• High salary / compensation in relation to others in the field.

The EB-1A requirements sound very similar to the O-1 requirements, and they are. But what do they mean? That’s what we’ll be exploring here.

(*There are 2 more EB-1A categories, “display of work at artistic exhibitions” and “commercial success in the performing arts,” that aren’t covered here at VisaBuilder. The arts and entertainment field is a whole different topic altogether, and it requires a super-specialist. The site Artists from Abroad is a great starting point for this.)

Well, it’s not a LOT harder to get. But yes, as a practical matter, adjudicators do give EB-1A petitions a higher level of scrutiny, and hold them to a more rigorous standard, than O-1s.

The O-1 visa package can be used as a trial run for your EB-1A. You can use your additional achievements in O-1 status, to shine up your initial O-1 evidence package to EB-1A quality.

An O-1 visa is a temporary, or “nonimmigrant,” visa. It lets you stay and work in the United States, but only on the specific gigs spelled out in the O-1 petition.

When your O-1 status expires, you’re expected to return to your home country. While the O-1 visa can be renewed indefinitely, each renewal requires a new, updated O-1 petition. This is a hassle, it’s expensive, and the outcome is never guaranteed.

The EB-1A is an “immigrant visa.” It gives you permanent resident status, AKA a green card. Green card holders can live here forever, travel freely, work at any job or no job, start businesses, and sponsor relatives for green cards. Green card holders can also apply for US citizenship after 3 to 5 years.

A green card is almost as good as US citizenship, but not quite. Green card holders can’t vote or hold public office. Your green card can also be revoked if you commit a serious crime or stay outside the US for too long. Still, it’s a much better deal than a temporary visa status like O-1.

Yes, the EB-1A is a great solution to the “waiting in line” problem for green card applicants from India, China, and other oversubscribed countries.

First, a new EB-1A petition won’t harm your existing EB-2 approval. A prior petition approval stands on its own. It won’t be revoked or jeopardized by a later petition in a higher category.

Second, if your EB-1A is approved, congratulations! You can now use your existing EB-2 priority date to apply immediately for your green card! In most cases this means you’re eligible right away, with no backlog.

Even if your EB-1A is denied, though, it won’t affect your EB-2 approval, or change your prior place in line.

If you don’t have a pre-existing priority date, what’s the wait time for the EB-1A? For many years, the EB-1A category was always “current,” meaning there was no backlog or waiting-in-line time.

Since 2017, though, it’s had sporadic backlogs for all applicants, with longer waits for India and China. The backlogs fluctuate widely from month to month. For example, for India, it can show a 5-year wait this month, then a 1-year wait next month. So it’s important to keep track.

Even so, the EB-1A is still the quickest, most efficient route to a green card for most high achievers.

All green cards, including the EB-1A, are processed in 2 stages. Stage 1, the visa “petition,” establishes your eligibility for the green card in the category you picked.

Stage 2, your “consular processing” (if you’re outside the US) or “adjustment of status” (if you’re inside the US), is basically a background check and interview for you and your accompanying spouse and children.

So once you’ve compiled your EB-1A package showing you’re extraordinary, here’s what you do with it.

• Take your package to a qualified immigration attorney, who will help you prepare and file your EB-1A petition for Stage 1, and structure your background check process for Stage 2.
• Finalize and file your EB-1A petition for Stage 1. This consists of Form I-140 “Immigrant Petition for Alien Worker,” filing fees, required elements, attorney’s cover letter explaining your evidence, index, and EB-1A evidence package.
• When USCIS approves your EB-1A, your Stage 1 is completed, and that’s the hard part! You’ll automatically be moved into Stage 2 processing, depending on your location.
• If you’re inside the US, you’ll apply for “adjustment of status.” Your background check and green card issuance will take place at a USCIS office in the US.
• If you’re outside the US, you’ll apply for “consular processing” at the US embassy in your home country.
• Whether inside or outside the US, your Stage 2 basically consists of detailed biographical information, a criminal records check, a medical exam, a security check, and an in-person interview.
• Once this process is completed successfully, you and your family members will be official permanent residents. Welcome to the United States!

Yes. This isn’t required by any law or regulation. But as a practical matter, the green card process is so complicated that it’s virtually impossible to navigate it successfully without a qualified immigration attorney – preferably one specializing in “extraordinary ability” cases.

Your costs will mainly consist of government filing fees and attorneys’ fees. Most attorneys break the case down into separate charges for Stage 1 (eligibility) and Stage 2 (background check).

STAGE 1

The basic USCIS filing fee for Stage 1, Form I-140, is currently $715-$1315. Check the USCIS fees page, as the amounts change frequently.

The USCIS filing fee for expedited “premium processing” for Stage 1 (adjudication within 2 weeks) is $2805. Again, check their page for updates. Premium processing is highly recommended. This isn’t the place to economize!

Attorneys’ fees for a high-quality immigration lawyer to file a Stage 1 EB-1A petition generally range from $5,000 to $20,000. There may be a substantial discount if the attorney already did your O-1 petition, or if you’ve prepared a high-quality EB-1A evidence package.

STAGE 2

For adjustment of status inside the US, the filing fees start at $1440 per person, plus miscellaneous fees for medical exams and biometrics, not including extras like employment authorization and foreign travel permits.

For consular processing outside the US, filing and miscellaneous fees generally run around $500 to $1000 per person.

Most attorneys charge around $3000 to $5000 for a straight adjustment of status or consular processing case with no criminal or medical complications. Some charge extra for family members, some don’t.

STAGE 1

If you use the USCIS “premium processing” service ($2805), they’re required to adjudicate your Stage 1 EB-1A petition within 2 weeks. As a practical matter, it can take up to 4 weeks or so, but that’s still pretty good. If you don’t use premium processing, your EB-1A petition can take up to 4 to 10 months or longer for USCIS to adjudicate.

STAGE 2

For both adjustment of status and consular processing, Stage 2 can take 6 to 12 months or more, depending on backlogs at the office that’s handling your case. There’s no expedited processing available.

While your USCIS petitions are pending, you can check your case status online.

Your attorney files your EB-1A petition by sending it to the address specified here, which is presently an assortment of USCIS lockboxes. As of mid-2024, USCIS filing procedures are in a chaotic uproar transitional period. Instructions change frequently.

The lockbox performs intake and forwards the case for adjudication, generally to the Nebraska or Texas Service Centers, the two USCIS regional service centers that traditionally handle EB-1A petitions.

Your petition’s queued for processing in the order received. When it’s your turn, your petition will be adjudicated by a single “Immigration Services Officer” who’s received special training in deciding EB-1A petitions. ISOs are career civil servants. They’re usually not attorneys.

The ISO will first review your filing for required elements, then examine your EB-1A evidence package to see whether it meets the “extraordinary ability” standard.

The ISO can either:

• Approve your petition.
• Send you a “Request for Evidence” asking for more information. These are common, and getting one doesn’t necessarily mean there’s anything wrong with your case. You’ll work with your attorney to supply the items requested.
• Send a “Notice of Intent to Deny.” These are issued when the case is missing an obvious required element – for example, when evidence is submitted in only 2 of the EB-1A categories instead of the minimum 3.

When the ISO approves your case, you’ll receive an I-797 “Approval Notice.” Your attorney will work with you to move forward into Stage 2 of the green card process, the background check, called “adjustment of status” if done in the US, or “consular processing” if done overseas.

Statistically, EB-1A visa petitions over time have had about a 60% to 66% approval rate, which means a 34% to 40% denial rate. This is a higher denial rate than O-1 petitions, and it’s also higher than most other green card categories.

It’s true that EB-1A petitions do get a high level of scrutiny. However, many EB-1A petitions are low-quality, thrown-together messes, and adjudicators rightly regard these with suspicion.

A high-quality, multi-category EB-1A evidence portfolio, meticulously organized and presented, has a much higher chance of approval – perhaps 85% or so.

Why isn’t it closer to 95% or 99%? Can’t you make your package so good that approval is virtually assured? Well, you should always try! Chance favors the prepared mind and all that. VisaBuilder is all about optimizing your evidence and your odds.

However, there’s just a stubborn element of arbitrary pig-headedness in the adjudication process, that the applicant can’t control or change. You can have a super-approvable petition, with a ton of solid evidence, that just lands in the wrong place at the wrong time.

If your case gets denied, it’s hard not to take it personally. But it’s totally possible that it wasn’t about you at all – you just got caught in the system on a bad day.

Yes, this is infuriating and unfair. But you, the smart applicant, won’t waste time worrying about that – you’ll just play their game, by their rules, to give them what they want, so you can get what you want. If this requires a Round 2, with a new improved EB-1A petition, that’s what you’ll do.

While stressful, an EB-1A denial has no long-lasting consequences. Legally, all this means is that USCIS found the evidence in THIS petition insufficient. There’s no limit to the number of subsequent petitions you can file, for EB-1A or any other category.

Should you appeal the denial? No, never appeal a denial! Even if the decision was obviously stupid and wrong, do NOT use their appeals process to set this right. It takes about a year, and the success rate for appeals is about 5%.

Instead, add more evidence to your existing EB-1A petition, especially in the categories that were the subject of the denial. Then just refile it as a new petition.

Yes, this is a hassle, and it’s expensive. But it’s the most efficient way to get what you want.

Yes. Over the last few years, attorneys have seen a strong trend of escalation in ridiculous USCIS Requests for Evidence, followed by wrongful denials, in very strong, well-documented cases. The normal appeals process does nothing to deter this lawless behavior.

However, a wrongful USCIS denial can be challenged directly in federal district court. In the past, it was rare to invoke this “nuclear option.” Now, though, a federal court challenge almost always prompts USCIS to reverse the denial and approve the case right away. They don’t want to go before a judge, and try to defend the indefensible.

This is especially effective for strong cases that are denied by a rogue officer with a history of unwarranted denials. In this “bad apple” situation, a federal-court challenge has become the de facto appeals process. It’s proven to be very effective.