Chapter 4: The Application Process
1. Selecting your lawyer (2 weeks)
The first step is to select your lawyer. This process will take approximately 2 weeks as you schedule consultations with 3-5 different law firms and ask them the questions listed in Chapter 4.
2. Onboarding with your lawyer (1 week)
If the lawyer agrees to take your case, you will likely be required to submit the first half of the legal fees and begin the onboarding process with the law firm.
Each law firm will have an onboarding questionnaire that you must complete. This questionnaire will ask for your personal information, details about how you meet the requirements for extraordinary ability, information about your previous employment, and documentation from the company sponsoring you.
During this phase, there are several decisions you will need to make with your lawyer:
Will you be going through consular processing or a change of status? If you are already in the U.S. on a visa, you will need to submit the petition with a change of status. If you are not in the U.S. already, you will be going through consular processing.
Will you be filing with an agent or a direct employer? An O1 visa always requires a U.S.-based petitioner to file the petition on behalf of the beneficiary (you). The agent path is common for independent contractors in the media industry who may have multiple jobs and employers, but it is less common for those in the technology field. The direct employer path means that you have a single corporation acting as the petitioner.
Who would be the strongest candidate to provide your Advisory Letter? An Advisory Letter is usually written by a peer in your field and provides an expert opinion that you meet the criteria for extraordinary ability. It should include details about your recognition in the field and examples of your specific accomplishments. An Advisory Letter is a requirement for an O1 petition.
If you do not meet at least three of the eight criteria, or if you want to strengthen your case by meeting additional criteria, you should work with your lawyer to create an action plan. This plan should outline the types of evidence you need to collect and the steps you can take to meet each criterion.
3. Compiling evidence (varies)
At this stage, your lawyer will provide you with a link to a platform where you can submit your evidence. This could be a simple shared Google Drive or a specialized software application used by the law firm for document sharing.
The duration of this step can vary. If itis relatively easy for you to gather all the evidence, you might complete this step over a weekend. However, if you are following a strategy to fulfill additional criteria, you could find yourself in this stage for six months or longer, depending on the complexity of the case.
4. Lawyer produces the petition (8-10 weeks)
Once you have collected all the evidence, your lawyer will need time to prepare the petition. Depending on their case load, a good lawyer will typically take 8-10 weeks to do so. It is important to note that a petition can be quite lengthy, often reaching up to 400 pages, which is a significant undertaking.
5. Finalizing and submitting the case (2 weeks)
Once your lawyer has created the petition, it is important for you to review it thoroughly before finalization. I highly recommend reading the entire petition carefully. If you have a competent lawyer, there may not be much that needs to be changed. However, if you have an inexperienced lawyer, there may be numerous changes required or additional evidence to be added. Unfortunately, it is impossible to determine the quality of your lawyer's work without reviewing the petition in detail.
Since you have this book, you can use the evidence required for each criterion to cross-reference your lawyer's petition. This will help ensure that all necessary supporting documentation is included.
Once you are satisfied with the final version of the petition, your lawyer will send a copy of it and obtain a receipt number from USCIS.
6. Waiting for USCIS (2 weeks - 6 months)
Once you have submitted the petition to USCIS and obtained a receipt number, you can check the status of your petition using the USCIS case status website.
If you have opted for premium processing, USCIS will respond within 15 calendar days. Note, not business days, calendar days. And sometimes case status will be approved even over the weekend, so if you’re anxiously waiting on your decision you can check the status every day if you’d like.
For cases without premium processing, the processing times can vary from a few months to as long as 6 months. Currently, as of May 2024, all cases are initially routed to the Texas service center before being forwarded to either the California or Vermont service centers. You can find the average processing times for each service center by referring to the USCIS case processing times website.
7. Receiving a decision from USCIS (3 weeks)
Once you’ve checked the USCIS case status website for your petition, you can have two outcomes.
1) You receive a Request For Evidence (RFE)
An RFE (Request for Evidence) is a formal notice issued by USCIS to request additional information or documentation before making a final decision on the visa application. Receiving an RFE is not a denial; it simply means that the initial application did not provide enough evidence to demonstrate extraordinary ability. A response to the RFE must be submitted within 30-90 days, unless your lawyer requests an extension.
Another option that I have seen lawyers employ is to ignore the RFE and submit an entirely new O1 application. This strategy may be chosen if it would take longer or be more challenging to respond to the RFE than to build a new, stronger petition, or if there is new evidence since the original petition was submitted that they would like to include. Whatever the choice, I would trust your lawyer's judgment here.
2) You’re approved!
Congratulations on your approval! Your hard work has paid off, and you have been approved. Once you see an approval status on the USCIS case status website, it will take approximately two weeks to receive a physical approval notice, formally known as an I-797B Approval Notice. This notice will be sent to both your lawyer's address and the address of the company sponsoring you, your petitioner.
Your lawyer will then be able to mail you the physical copy to your location anywhere in the world. You will need this physical copy in order to enter the U.S.
8. Post Approval
Once you’ve been approved and have your physical approval notice, it’s time to come to the U.S. This process will vary depending on which country you’re coming from and whether you petition was filed with Consular Processing or Change of Status.
Canadians - Change of Status
As a Canadian, you are exempt from the regular visa interview process. This means that your status automatically changes on the requested validity date, without the need for a visa stamp.
However, on your first day of work for your new employer in the U.S., you will still need to fill out an I-9, Employment Eligibility Verification form.
Canadians - Consular Processing
If you're Canadian, it means you don't have to go through the usual visa interview process to obtain a visa stamp.
Simply head to any port of entry with the following documents:
Your Canadian passport
Your I-797B Approval Notice
Your dependents will also need to carry the following:
Their passport
Your I-797B Approval Notice
Marriage Certificate (for spouse)
Birth Certificate (for children)
On your first day of work for your new employer in the U.S., you will be required to complete an I-9 Employment Eligibility Verification form.
Everyone Else - Change of Status or Consular Processing
If you are not a Canadian, you will need to undergo a visa interview and receive a visa stamp from a U.S. consulate or embassy. See Appendix E: The Visa Interview for more details on how to ace the visa interview.
Search the U.S Consulate or Embassy website where you can find the closest consulate or embassy to you and where you’ll receive country specific instructions.
Fill out a DS-160 Form for you and each Dependent and print the confirmation pages.
Attend your visa appointment and bring the following
I-797A Approval Notice
DS-160 Confirmation Page
Application Fee Payment Receipt
Valid Passport
Copy of Your Petition
And if you’re bringing dependants, they will need to bring
I-797A Approval Notice
DS-160 Confirmation Page
Application Fee Payment Receipt
Valid Passport
Marriage Certificate (for Spouse)
Birth Certificate (for Child). Children ages 13 and under may not need to appear for visa stamping in person. Check with your U.S. Embassy or Consulate.
The purpose of the visa interview is for the Consular Officer to confirm your identity and determine if you meet the qualifications for the requested visa.
During the interview, the Consular Officer will ask you questions regarding your identity, your employment in the U.S., and your background.
Typically, the interview itself lasts less than 10 minutes. Once approved at the consulate or embassy, your passports will be returned to you with a visa stamp.
For more information on what to expect during the visa interview and tips on how to excel, please refer to Appendix E: The Visa Interview.
Consular Processing
If you submitted your application under consular processing, you will still need to obtain the visa stamp through the aforementioned process.
If you are currently outside the country, you can schedule your visa appointment before receiving a copy of your I-797B Approval Notice. It is not necessary to bring a physical copy of the approval notice to your visa appointment.
Change of Status
If you submitted your application under a change of status, your status will automatically change starting on the requested validity date. However, you will still be required to attend the visa interview.
You will complete an I-9, Employment Eligibility Verification on your first day of work at your sponsoring company.
9. Acquiring your Social Security Number (SSN)
Once you have completed the previous processing step and are in the United States, you can now request a Social Security Number (SSN) if you do not already have one.
Check this website for more information on how to apply for one. You will need a valid passport and an I-94 Receipt that you can download from here showing your valid visa status.
10. Requirements for Re-Entering the U.S
Whenever you re-enter the U.S you’ll need to have these documents.
You will need to carry your valid:
Passport
Visa Stamp (if not Canadian)
I-797A Approval Notice
2-3 Recent Pay Statements from the Employer Listed on the I-797A Approval Notice
Your dependents will need to carry their valid:
Passport
Visa Stamp (if not Canadian)
I-797A Approval Notice
Marriage Certificate (for spouse)
Birth Certificate (for child)
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