USCIS Updates Policy Guidance for O-1 Petitions

Overview

The USCIS recently published updated policy guidance for those applying for O-1 petitions, confirming their historic adjudicative practices. 

The new guidelines primarily affect the following:

• Current O-1 holders applying for extensions with the same employer
• Startup founders applying for O-1 status

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Key Updates

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Stay Requests

The updated guidelines now explicitly note that in cases of continued employment with the same employer wherein there is a change in “activities”, such as the job duties, the employee may receive an up to three-year extension instead of the typical one-year extension.

Please note that this only applies to cases where a change or a new activity is being completed for the same employer. The three-year extension does not apply to cases involving continuing to do the same work for the same employer.

Additionally, the guideline is worded to preserve the USCIS’s discretion in determining whether to allow an extension longer than one year.

Letters of Recommendation

The update specifically notes the significance of having a letter of recommendation completed by a governmental or quasi-governmental agency when evaluating the major significance of an original contribution, as well as, the Final Merits.

Self-Sponsoring

For startup owners, the update reaffirms equitable holdings as comparable evidence to compensation and explicitly recognizes the ability of beneficiary-owned companies to sponsor their O-1. In essence, startup owners with majority holdings in their company can sponsor themselves.

Explanation of Accepted Evidence

In the update, explanations and examples of evidence for each criterion (O-1A and O-1B) are brought from the appendix to the main policy guidance page. As such, the move reaffirms past policy practices that were contained in the previously difficult-to-locate appendices, making them more visible. Key examples of this are:

• AAAI and IEEE Fellow Grade Memberships qualify under the membership criteria
• Confirms the usage of the H-Index for determining the impact of scholarly works and explicitly notes the approved usage of other, unspecified indices
• Significant startup funding or equity can count toward the “high remuneration” category

Additionally, a few new examples of relevant evidence for original contribution were added to the list, indicating recognition of contributions made in industry settings. Among these, the most notable are:

• Evidence of the commercial use of the beneficiary’s work, such as the commercialization of a research innovation; and
• Evidence of contributions to repositories of software, data, designs, protocols, and other technical resources that have a significant scientific, scholarly, or business-related impact in the field

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In Summary

The new USCIS guidelines primarily reaffirm their existing adjudication practices, consolidating policies on acceptable evidence by moving them from the appendices to the main page and adding a few new examples.

Vanguard Visa Law has already helped countless founders “sponsor themselves” for the O-1 visa, and we’re pleased to see USCIS officially recognizing this approach as part of their guidelines.

Finally, we strongly encourage O-1 applicants seeking renewals to explore the option of 3-year extensions instead of the standard 1-year extensions. In many cases, we can identify a pathway to make this happen.

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