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Decoding the O-1A Criteria: AMA with Ron Matten

July 21, 2023
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we interviewed Ron Matten who is a veteran lawyer and the founder of Matten Law. We begin by talking about the three criteria under the O-1A visa: the original contribution, critical capacity, and awards. After that, we expand into answering questions from the audience. Let's dive in!

Welcome to the another edition of our “Ask Me Anything” series, where we interview immigration lawyers and talent visa holders on O-1, EB-1, and EB-2 NIW visas.

In today’s edition, we interviewed Ron Matten who is a veteran lawyer and the founder of Matten Law. We begin by talking about the three criteria under the O-1A visa: the original contribution, critical capacity, and awards. After that, we expand into answering questions from the audience. Let's dive in!

Hello Ron. It’s great to have you here. Let’s start by talking about:

What made you specialize in working on O1 and EB-1 visas?

Well, several factors led me to my current career that weaves together process engineering and immigration law. Initially, I earned two degrees in engineering and spent six years as a process engineer.

Intrigued by immigration issues, I devoted all my summer and volunteer work during law school to this field. Eventually, I joined a high-volume corporate immigration law firm associated with Ernst Young, creating an unexpected connection between my legal interests and engineering background.

Being efficient was crucial in handling the high caseloads at those practices; unfortunately, some may have seen the downside of it too. However, when I decided to start my own firm, my goal was to retain efficiency while providing a personalized client-focused service akin to concierge-level care.

My journey took another turn when I brought on board a lawyer who shared my passion for music—a common thread linking our technology clients with highly creative individuals seeking visas. Despite seeming unrelated initially, these categories intersect through an entrepreneurial spirit inherent within both techies and creatives - something hopefully many of you share.

What are some of your insights on the ‘Original Contribution’ criteria for the O-1 Visa?

It's crucial that even without obvious proof, we discuss what has been achieved and its impact; what sets it apart from others? A swift career progression at top companies isn't sufficient alone; we must elucidate why the individual deserved such accolades.

Moving on to evidence supporting original contribution: patents are an established example but often aren't enough by themselves. We need to expound how said patent or creation is practically applied and any direct benefits like revenue generation or efficiency improvements.

However, if you've moved jobs post-patent filing and the evidence is proprietary information from your previous employer – this can be tricky! Hence my constant advice about maintaining records. This history helps even when you're not ready to apply immediately since revisiting old info can be challenging – just ensure nothing confidential is involved!

For instance, consider a patented facial recognition technology used by Facebook's portal feature during video calls - perhaps you were part of developing this aspect? While sharing internal revenue growth figures linked directly may not be possible due to confidentiality constraints, having a record allows us to estimate product influence via public news articles or Facebook data emphasizing the specific tech involved.

Remember though: simply owning a patent isn't enough - we also need tangible results indicating real-world applications and impacts.

What is the best way to collect evidence for the ‘Critical Criteria’ capacity?

The crucial aspect here is proving two things: your critical role and the distinguished reputation of your organization. Often, people can prove their vital role but struggle to demonstrate the organization's eminent standing.

Primarily, establishing an organization’s prestigious reputation should be a task for your lawyer. For instance, with a company like Facebook, we'd highlight its ranking among top social media apps using publicly available data such as subscriber use or ad revenue. However, if you worked at a smaller company or startup (which we deal with often), we might leverage other evidence like acceptance into prominent accelerators like Y Combinator. This not only exemplifies the venture capital funding received as an award but also underscores that your lesser-known startup has recognition from industry leaders.

We search for company-related articles and rankings in order to emphasize what makes it specialized. Regarding proving critical roles - it's straightforward when dealing with startup founders; as CEOs they were necessary for existence! Yet within larger companies, this involves showcasing leadership positions—like being senior software engineer on key projects—and explaining how these would have failed without you.

Proof of employment letters coupled with colleagues willing to confirm experience are essential in achieving this goal—an EB1A recipient testified about receiving letters from executives confirming her pivotal project contributions despite lack of press coverage mentioning her name specifically. We typically rely on multiple sources of evidence backing each criterion—not just one piece.

Thinking about original contributions is paramount because mapping out 3-10 major career accomplishments helps frame our case effectively.

When shifting careers such as moving from analyst to life coach—it’s important to connect past achievements with current endeavors which takes some creativity.

What should applicants keep in mind for the Awards category for an O1 Visa?

The USCIS critiques applications stringently, but instead of getting bogged down in legal jargon and regulations, put yourself in the adjudicator's shoes. They're conducting a simple smell test: Does your achievement truly represent extraordinary ability? A top math student accolade from high school may not suffice.

In technology fields with numerous competitions for emerging companies, especially AI-based ones, chances to be recognized are many. Working at smaller firms allows you to stand out more than being part of large corporations where individual achievements might go unnoticed due to internal awards and recognitions.

Consider presenting papers or speaking at conferences even if they're internally organized by companies like Google. These actions not only display original contributions but could also lead to recognition such as audience-favorite presentation awards that carry significant value.

However, "Employee of the Month" type rewards might have less impact on demonstrating adherence to government standards. For those in startups, venture capital funding is another mark of success we frequently utilize.

Additionally, noting other recipients of an award can help establish its importance – provided those individuals themselves are distinguished. But beware; if everyone gets the same award it might appear more participation-focused than merit-based.

Keep things relative - don't get lost in regulation details since application reviewers usually spend only a few minutes initially scanning through documents before making their decision or seeking additional information (RFEs).

Rounding up my advice: remember these officers aren’t experts across all disciplines applicants come from so make sure your application is understood by someone without expertise in your area. In tech fields particularly when summarizing what you've done, take advantage of Bard or Chat GPT's help.

Now, let's switch to questions from the audience. First question:

What kind of evidence can we show if we are changing career paths? For example, going from an analyst to a life coach.

In handling cases that involve changing fields—our approach entails defining specific niche areas rather than making sweeping generalizations—that way demonstrating extraordinary ability becomes more feasible e.g., "extraordinary in leadership development for computer professionals" rather than plainly "an exceptional software engineer". Essentially, tracing connections between past experiences and present activities will allow us to include relevant evidence while painting them as building blocks leading up to today's situation.

What qualifies as scholarly articles under the EB-1A visa?

EB-1 A does include a criterion about scholarly articles. If you're more practical than academic, we can still use these articles. The proof here would be your Google Scholar printout showing how many times your article has been cited or its relevance.

If you're going for EB-1 B, the outstanding researcher category, it's important to have published numerous articles. But if you fall under the EB-1 A category, even having one highly referenced article can suffice as proof.

We need evidence of who is referencing your work based on statistics in Google Scholar or similar sources. For instance, we once did an O-1A case where a lawyer's book was used as reference by their country's Supreme Court - this person had built strong connections that validated their work.

This brings up an essential point about building networks; they are crucial when seeking attestations of what you've contributed to the field. It could mean testimonials from former professors talking about how vital your paper is but even better if someone impartial like another professor can vouch for the importance of your work—people not directly connected with you hold more credibility.

Finally, connecting with people within our Unshackled Community might also help since those contacts might end up writing referral letters supporting your application – so make sure to network well within this community!

Checking out the member directory allows networking opportunities too; some members may be working at top-notch companies ideal for referrals.

What’s a good way to start publishing in academia while on an H-1B Visa?

Can that be done independently or through a company?

Numerous firms specialize in working with large corporations like Apple's research department, often handling O-1 and EB-1B cases for such entities. A significant difference between the two visa types is that an employer must petition the EB-1 B, while the EB -1 A can be softly petitioned.

Within a corporate context, larger companies with established research and development departments are likely to have stronger eb-1b applications. Smaller organizations might encounter skepticism over their focus on R&D from government authorities.

An interesting query arises around H-1B holders publishing articles - could this violate their immigration status? There's no official directive on this; if you're not being paid for it, there should be no issue. However, caution is advised to avoid breaching employment agreements or confidentiality terms with your current employer.

If you do wish to conduct independent research in your spare time and aim for publication, building a network of professors could help. LinkedIn Premium offers advanced search tools which may assist you in finding academics within your field who might take an interest in co-authoring or promoting your work.

What evidence can be provided for an award that is from a niche competition at an International Conference?

We'll need details, but our aim would be to establish the significance of that specific competition. If it's such a niche area and doesn't have its own dedicated conference or awarding association, we must prove if this particular contest within a broader context is one of the few existing ones. The goal would be to present it as important despite it being hard to do so.

Evidence may include the program of the conference outlining different events and highlighting the contest, corroborated with expert letters attesting its importance in seeking emerging talent (avoid "rising" since USCIS might misconstrue it). These experts could be professors or high-ranking company officials within that field who recognize this event’s significance.

Addressing Aditi's question about paid research publication while on cap-exempt H-1B: You can only get paid if your H-1B petitioner is paying you. It doesn’t grant permission to work for everyone freely; work authorization is strictly given by your petitioner only. However, they could file a concurrent H-1B petition for you first before doing so.

Does the O-1 give more flexibility in getting paid for side hustles as compared to an H-1B Visa?

The O1 visa requires a petitioner. In our practice, which often handles artists and musicians, it's common for the petitioner to be an agent. This isn't as normal for software engineers or other professionals who typically have employers instead of agents. However, regulations don't ban having someone operate as an agent solely to act as a petitioner.

It's a complex area without direct steps to follow but there might be ways around it. Generally, especially with startups or smaller consulting companies obtaining an O-1A visa, it is preferred that side projects are under agreements between the petitioner and client with compensation via the petitioner. On paper, you're delivering services on behalf of your employer.

For instance, as mentioned in the book, if someone is working with a UX designer at a 3D software company, besides her work at the company, she wants to monetize her gallery exhibitions too. They made this part of her official tasks with her employer accepting responsibility.

When examining O-1 versus H-1B pros and cons, O-1 doesn’t have a six years limit like H-1B does but lacks formal dual intent requiring extra caution regarding international travel at AOS stage during Green Card process end phase. O-1 spouses aren't eligible for work authorization until they obtain either EAD based on Green Card or green card itself unlike H-4 holders who could acquire an H-4 EAD if they belong to the retrogress category and their employers possess approved I-140 form.

Separately from immigration matters, should you decide to work for a startup whether being a founder or an employee, keep in mind those enterprises don't always last, making the job market return much sooner than anticipated possible necessity.

Does critical role depend on one’s designation in the organization for EB-1 A?

Your job title doesn't necessarily reflect your significance within a project. For example, even as a junior software engineer, you could have created key parts of a broader program. We would emphasize what you've achieved rather than focusing on the position held or salary earned.

Take for instance an EB-1 case we handled some time ago. The client was part of the team that pioneered subscription services for online gaming at a renowned company. Prior to this innovation, games had to be purchased individually for consoles. This groundbreaking idea not only benefited his company but also set the standard in the industry.

So regardless of job designation or career stage, it's about underscoring your contributions and how they drove progress within your field.

Would you recommend applying for an O-1 before an EB-1?

Here's what I'd say: having an O-1 A offers insight into your chances with the EB-1 but it doesn't guarantee success.

The correlation isn't strong, but obtaining an O-1A can be advantageous if you receive a request for evidence (RFE) because it lets you understand what areas concern the adjudicator most. This knowledge can then guide our approach when we apply for your EB-1a, allowing us to strengthen weak points like proving the significance of a particular employer or award which led to granting an O1A.

However, assuming that holding an 01a guarantees getting approved for eb-1a is risky and impractical. Approval rates of 01s are usually more than 90%, even during the Trump era while those of EB-1as have dramatically dropped to around 60% especially in Nebraska.

Considering all this, remember that despite rigorous scrutiny by immigration lawyers before filing any case, achieving approval through EB-1 visas is not easy due to their low odds and high work requirement compared to o-one visas whose approval probability is twice as much as that of EB-1

If someone is on an H-1B Cap-exempt and is looking to get a concurrent H-1B, to work on publishing academic papers with a university, is it a concern if both jobs are in different fields?

From a work authorization perspective, it's essential to link your job with qualifying for an O1 or EB1. For example, if you've been employed at a prestigious location like Lawrence Livermore Lab and are extraordinary in AI research, that could justify why a company hired you for video-related work. The key is proving how this new opportunity connects back to the skills you've previously demonstrated.

In regards to acquiring a second concurrent H1B in another field, it's possible but still requires meeting basic conditions such as having the job relate to your degree and being a specialty occupation. Suppose you have an engineering bachelor's degree and work as an engineer but also hold an MBA and perform management consulting part-time. In that case, these factors may contribute towards securing the secondary H1B.

Remember though, if your current H1B is cap-exempt; you can obtain another concurrent one from a capped subject employer without going through lottery selection. However, demonstrating that this new role qualifies as specialized work will be necessary.

Lastly, resources like Open Avenues Foundation offer help by pairing applicants with universities to secure cap-exempt H1Bs while retaining their employers via concurrent capped-subject ones - useful if not selected in the initial lottery draw. Just ensure understanding of associated costs before proceeding.

Coming to the last question of the session, is a person allowed to be on an H-1B and O-1 visa simultaneously from two different companies?

Sometimes, you might be concerned about timing when changing your immigration status. If you're on an H-1B and want to shift to an O-1 for your startup without notifying your employer prematurely, there are procedural steps you can take. You could opt for a 'concert notification' O-1, which only asks for approval and not immediate change of status. Once approved, take it to the consulate, get the visa, then decide when to notify your current employer.

This process sometimes poses challenges as scheduling a visa appointment can prove difficult but being aware of these procedures allows better time management.


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