DHS Updates Policy Guidance on O-1A Visa Eligibility with Emphasis on STEM Fields

| Jan 28, 2022 | Firm News

On January 21, 2022, USCIS updated its guidance on O-1A nonimmigrant visas, which are available to persons of extraordinary ability in the fields of science, business, education, or athletics. USCIS emphasized in its announcement that the guidance can be applied to individuals with extraordinary ability in STEM fields.

O-1A status allows an individual to lawfully live and work in the United States in the area of their extraordinary ability. Notably, unlike an H-1B visa, O-1A status can be filed at any time, can be extended an unlimited number of times, and does not require a prevailing (minimum) wage. Therefore, O-1A status may be a valuable option for qualified individuals who are ineligible for H-1B status because their H-1B electronic registration was not selected, or because they have reached their maximum 6 years of H-1B status and are not eligible for an H-1B extension.

To qualify for O-1A nonimmigrant status, an individual must demonstrate (among other requirements) that they have received a major internationally recognized award (like the Nobel Prize) or meet at least three of eight types of criteria. The eight criteria include, for example, receipt of a nationally or internationally recognized award; evidence of having published  scholarly articles in the field, in professional journals, or other major media; evidence of having made original contributions of major significance in the field; and evidence of been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation.

In updating its guidance on O-1A nonimmigrant visas, USCIS has published an appendix that contains examples of which kinds of evidence may qualify to meet the various O-1A criteria. For example, USCIS clarified that a transcript of professional audio or video coverage of a noncitizen’s work may qualify as “published material” about the noncitizen’s work in a professional journal or major media.

USCIS also clarified that when one of the eight O-1A evidentiary criteria “is not readily applicable” to the noncitizen’s occupation, then the noncitizen may submit “comparable evidence” to satisfy that criterion. For example, a noncitizen in the business field may be able to show that a presentation at a major trade show is comparable to having published scholarly articles, and an entrepreneur may be able to show that evidence of highly valued shares in a startup are comparable to receiving a high salary.

Written by Joseph Fungsang, an immigration attorney and partner-in-charge of the New York City office of Margaret W. Wong & Associates, LLC. The above text is for informational purposes only and is not legal advice.