O-1A and EB-1A self-petitions: Arrival timing, dependent work authorization, criteria selection, and supporting documentation
Hi Rajiv,
Thank you very much for all the help. My apologies for the long text. I have questions related to the O1A and EB1A self-petitions. I have asked them all in a single post.
I am an established scientist living in Europe. I have a Ph.D. and 4 years of postdoctoral experience. Currently, I am in discussion with a company in California for a scientist position. Their attorney has suggested to go with O1A first, so that I can join them ASAP. Later, maybe in 2025, they might go for a lottery-based H1B as they are FOR profit. They could sponsor me for EB1B after a year of working with them. But I am willing to do an EB1A by self-petition without an attorney. I meet 6 out of 10 criteria, and I am already working on my petition. I have a few questions and would be really thankful for your suggestions.
1. How soon should I submit my EB1A i-140 once I arrive in the US on O1A? Could it be within 30 days of my arrival in the US? I read somewhere that a few attorneys do not consider O-1 as a dual intent visa and ask an applicant to wait for at least 90 days.
2. Dependents of O-1 get an O-3 visa, which does not allow them to work. The best solution here is to have my spouse’s own H1B. Under unfortunate circumstances, there is a chance that H1B does not get picked up in a lottery. If so:
i. Would my approved EB1A i-140 help my spouse in any way to obtain work authorization on O-3 (similar to those with H4 EAD)?
ii. If not: will there be any problem from USCIS’s perspective when I switch from O-1 to H1B after my i-140 gets approved? Will my i-140
still be valid, or do I have to resubmit it due to a change of visa? Our sole purpose would be to get work authorization for my spouse.
iii. Are there any travel restrictions while holding O-1 with an approved i-140?
iv. Is it true that O-1 holder should not travel after I-485 submission, even though the visa stamp is valid?
3. Although approval of O1A sets a base of extraordinary ability, the EB1A evaluation is stricter than O1A. Therefore, I do not want to claim all six of my criteria for the O1A petition. I feel that, upon doing so, my self petition for EB1A might not have anything new to claim. From my CV, the attorney would be able to find information on only 3 criteria (Awards, Scholarly Articles, and Judging Peers). I want to keep the other 3 criteria (Contribution of Major Significance, High Salary and Published Material about me / my work) for my EB1A. I feel that, as a professional expert, my company’s attorney would make a good case based on those 3 criteria. Do you think it is fair enough? Or should I inform him of all 6 criteria? Also, would it create any problem from USCIS’s perspective if we claim only 3 criteria for O1A and 6 criteria for EB1A in a short gap of a few months between the two petitions?
4. Criteria for a higher salary (EB1A): During my postdoctoral research, I received an award from the government in the form of a certificate plus a monthly fellowship (tax-free). This fellowship was more than 40% higher than what the other postdocs were earning. And it would be 80% higher if we consider their after-tax income. Information about my fellowship is well documented by the funding agency. But information about other postdocs’ salaries is not openly available. Is it okay if I provide a letter from my professor stating the salaries of regular postdocs as evidence?
5. Criteria for Judging the Peers (EB1A): I have received about 45 invitations to review manuscripts for international journals. I accepted only 17 and rejected the remaining 28 invitations due to time constraints and other commitments. In my petition, should I mention only 17? Or should I also explicitly mention those 28 that I rejected? OR should I not clarify it at all and first attach the confirmation emails of those 17 completed, followed by the invitation emails for the remaining 28? Will the USCIS officer check all 45 emails?
6. Criteria for Contribution of Major Significance (EB1A): I published a research article in a journal. The findings are of high importance for my scientific community. Another researcher (whom I do not know) selected my article and published a commentary article based on my studies. Such commentary articles aim to highlight breakthrough findings from the original research, making the information more accessible to a broader audience. My article was selected out of 11 other research articles published in the issue. Can I claim two criteria here?
i. Contribution of Major Significance: I will get a letter from the researcher explaining why he chose my study and it’s importance to our
scientific community
ii. Published Material About My Work: He has clearly mentioned in his article that it is exclusively based on my work, which is very important
for our scientific community. Does this fulfil the criteria of “evidence of published material about you in professional publication.”
7. Criteria for Contribution of Major Significance (EB1A): I also hold a patent that was published in 2014. It never got commercialized. But I feel that I should still keep this information, as it might add some weight to claim the criteria of major significance along with the commentary article (as discussed above).
Thanks a lot!
