How I got an O-1 visa as a software engineer / founder

I have benefitted from reading other people’s writing about their US visa journey. I’d like to pay that forward, and write down my own story in case it is helpful to others.

The fact that it’s called the “extraordinary ability” visa can make the O-1 seem intimidating. However, this pathway is surprisingly well suited to many startup founders. The visa is valid initially for 3 years, and extendable indefinitely for one year at a time.

Note: None of this is legal advice. It is simply me recounting my own experience, which may or may apply to you. Please speak to an immigration lawyer if you are considering applying for an O-1.

Jump ahead

• Timeline
• Meeting the extraordinary ability criteria
• How much does it cost?
• Should you work with a lawyer?

Timeline

• Earlier - Arrived in the USA on an L1B visa (sponsored by my employer Wave) with an expiry date of Feb 2023 
• Summer 2022 - Left my SWE job at Wave and incorporated my own startup called Path (a Delaware C corp)
  • I was permitted to remain in the USA, since I was not employed by Path yet. My understanding is that it is permissible to do exploratory work on a new startup as long as you are not employed by that startup, and your previous visa has not expired.
    • It was during this time that my cofounder and I raised money for Path.
    • Note: If I had left the USA during this time, I would not have been permitted to re-enter on my old L1-B visa.
  • Path had 2 co-founders, with 50 / 50 ownership and both of us were on the board. This ensured that I could be fired, and therefore met the employee-employer relationship requirement for the O-1.
• 16th September 2022 - My lawyer and I discussed the prospect of applying for an O-1
• 21st October 2022 - Filed the application with USCIS with premium processing
  • I already had the materials ready, so didn’t need to spend time building my profile
• 24th October 2022 - Received a receipt notice from USCIS
• 27th October 2022 - Received an approval notice 🎉
• 5 January 2023 - Attended my consular interview at the US Embassy in London
  • Received my passport back with a visa stamp a few days later

Meeting the extraordinary ability criteria

To qualify for an O-1 you must meet 3 of the following 8 USCIS criteria. I met the 4 criteria highlighted in bold (*) below.

• Nationally or internationally recognized awards (*)
• Membership in organizations which require outstanding achievement
• Press about the applicant in journals, trade publications or major media
• Has judged the work of others (e.g. peer-review, or judging hackathons)
• Evidence of original contributions in science, scholarship, or business (*)
• Has authored / published articles in professional journals, or major media
• Has been employed in a ‘critical capacity’ at an organization with a distinguished reputation (*)
• Evidence that the beneficiary has commanded a high salary (*)

Below are more details on how I met each of the criteria. In general, for every claim made in your O-1 petition letter, you should be able to back it up with documentary evidence, or a statement in a signed letter from a credible person.

Nationally or internationally recognized awards

Startup funding counts as an award, if you can demonstrate that the investor(s) were being judicious in their investment. In other words, you must demonstrate that your investors only select a small percentage of the opportunities presented to them.

At the time of my application, my company had raised $98,000 on SAFEs from friends, family and angel investors. Alongside copies of all the signed SAFEs (demonstrating total funding amount), we submitted our pitch deck, and letters + CVs from two investors showing their credibility as discerning / selective individuals.

Evidence of original contributions in science, scholarship, or business

I did not have to do any additional work, beyond the day-to-day work I had done at Wave in order to meet this criterion.

While at Wave, I worked on several projects that were original in the industry, primarily because Wave had unique constraints as a fintech targeting sub-Saharan Africa. It helped that I had previously met the L1-B criterion for “specialized knowledge” and we were able to make a similar argument here that I had worked on original, proprietary software at Wave.

As evidence, we included my employment contract, letters from the CTO and a cofounder of Wave, and press coverage showing Wave’s success in Africa. We also included material from a conference talk I gave at PyCon Africa in June 2019.

Being employed in a ‘critical capacity’ at an organization with a distinguished reputation

It’s important for this criterion to show both critical capacity, and distinguished reputation. My lawyer made the argument that I met this criteria both for my work at Path, and my work at Wave.

At the new startup, Path, it was easy to show critical capacity since I was a founder, large shareholder, and board member, as evidenced by our incorporation documents. To demonstrate distinguished reputation, we showed that Path had raised nearly $100,000 in funding, and that Path had been accepted into a legal tech sandbox program.

To demonstrate critical capacity at Wave, we used the same two letters: one from Wave’s CTO and one from Wave’s cofounder showing that I was an early employee and had worked on key projects which contributed significantly to Wave’s success. To show distinguished reputation we submitted media coverage about Wave’s impressive $200m Series A fundraise.

Evidence that the beneficiary has commanded a high salary or remuneration

Equity grants in startups count towards this requirement.

“if the petitioner demonstrates that receipt of a high salary is not readily applicable to the beneficiary’s position as an entrepreneur, the petitioner might present evidence that the beneficiary’s highly valued equity holdings in the startup are of comparable significance to the high salary criterion.”
- USCIS Policy Manual. Volume 2, Part M, Chapter 5, Section 3

I showed that my total compensation (base salary + equity) at Wave for the 2021 calendar year was higher than the top 10th percentile for software engineers in New York City as recorded by the US Bureau of Labor Statistics benchmark, and the Career One Stop website.

I benefited from the frothy investment market of 2021. The stock options I was granted at Wave were issued before Wave raised money at a $1.7B valuation, so they were worth a lot on paper at the time of my O-1 application. As documentary evidence, we submitted copies of my Wave stock certificates, and 12 months of paystubs.

Note: you can meet this criteria by commanding a high salary at any point in the past, it doesn’t have to be your most recent year of earnings.

How much does it cost?

The O-1 filing fees were $460, with an additional $2,500 for premium processing. (Note: the premium processing fee is set to increase to $2,805 on February 26th 2024).

I was quoted in the $6k-$10k range for immigration lawyer fees (not including filing fees).

Should you work with a lawyer?

I would definitely recommend working with an immigration lawyer, especially if you are not very familiar with the US immigration system. There were several subtleties within the application process which I did not know about until my lawyer made me aware of them:

• I didn’t know that I had a good chance at an O-1 until I spoke to a lawyer
• I didn’t know that fundraising counts as an award
• I didn’t know equity grants can be used to meet the high compensation criterion

I had a mixed experience with my immigration lawyer, so I won’t include them here, but here are some people I would recommend reaching out to if you are interested in an O-1 for yourself.

Lawyers:

• Daniel Larson helped me with my EB2-NIW petition
• Amber Davis I have seen recommended in several places
• Bay Immigration who I have heard several excellent recommendations for
• Alcorn Immigration is a staple of Silicon Valley immigration thanks in part to their excellent podcast

Other support:

• Lighthouse is focused on preparing O-1 petitions quickly. In days, not months.
• Plymouth Street are a tech-enabled firm helping high-skilled candidates get to the US
• Logan Ullyot has helped hundreds of tech workers with their visas and is building a cool new tool for O-1 applicants
• Soundarya’s Unshackled community is a great resource for those who want to build their O-1 profile in a community with others

If you would like to see a redacted version of my full O-1 petition, or if you are working towards an O-1 yourself, I would love to hear from you! I hope you found this helpful!

At Path, I'm working on software for immigration. If you're considering applying for a visa, leave your email below to stay in touch.