How to Obtain an O-1 Visa as an Entrepreneur

Welcome back to Immigration Lawyer Blog! Are you an entrepreneur wishing to work in the United States temporarily? In this video, Jacob Sapochnick discusses how you can live and work in the United States as an entrepreneur on an O-1A visa.

Want to find out more? Just keep on watching.

Overview

As you know there is no clear pathway in U.S. immigration law for entrepreneurs to obtain a U.S. visa to work in the United States. While many had hoped that comprehensive immigration reform would bring about much needed changes in our current immigration system to afford entrepreneurs the opportunity to build their businesses in the U.S., no “start-up” visa has yet been legislated. However, entrepreneurs are increasingly turning to the O-1A visa as an alternative.

What is the O-1A visa?

The O-1A nonimmigrant visa is suitable for individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics (not including the arts, motion pictures, or television industry which is known as the O-1B visa).

To be eligible, applicants must demonstrate extraordinary ability by sustained national or international acclaim and must be coming to the United States temporarily to continue work in an area of extraordinary ability. Extraordinary ability under U.S. immigration law means that you are one of a small percentage who has arisen to the very top of your field.

One of the main drawbacks of the O-1A visa is that you cannot self-petition for an O-1A. You must have a contract with a U.S. employer to establish a valid employer-employee relationship. As an entrepreneur, however, you may form a company in the U.S. which can petition you for an O-1A, so long as a valid employer-employee relationship has been created.

A valid employer-employee relationship exists where other individuals in the business entity can hire, fire, pay, or control your work. At all times, the company (petitioning entity) must be in control of the work conditions. If it is impossible to fire the employee, then no valid employer-employee relationship can be said to exist.

Several factors are considered by USCIS to determine whether a valid employer-employee relationship has been formed. It is necessary to conduct a comprehensive evaluation of the petitioning entity and the job offer to fully understand whether the entrepreneur’s application is likely to be successful.

What requirements do I need to meet to qualify for the O-1A visa?

In a nutshell, to be eligible for an O-1A visa you must:

Demonstrate extraordinary ability in the sciences, education, business, or athletics, which has been demonstrated by sustained national or international acclaim;
Demonstrate achievements that have been recognized in your field through extensive documentation; and
Continue to work in an area of extraordinary ability.

The O-1A visa is a very common alternative to the H-1B work visa. It is a much more attractive option because the H-1B visa program is subject to annual quotas and is more difficult to obtain.

The O-1A visa may be a good option for you, if you can meet the requirements of extraordinary ability and you have a valid employer-employee relationship.

To support your application, you must demonstrate that you meet at least 3 of the following 10 criteria to prove your extraordinary ability in your field:

Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
Membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
Published material in professional or major trade publications or major media about the beneficiary, relating to the beneficiary’s work in the field for which classification is sought, which must include the title, date, and author of such published material, and any necessary translation;
Evidence of participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization for which classification is sought;
Evidence of original scientific, scholarly, or business-related contributions of major significance in the field;
Evidence of authorship of scholarly articles in the field, in professional journals, or other major media;
Evidence of your performance of a leading or critical role in distinguished organizations;
Evidence of employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation; or
Evidence that the beneficiary has either commanded a high salary or will command a high salary or other remuneration for services, as evidenced by contracts or other reliable evidence;
Evidence of your commercial successes in the performing arts

How long is the O-1A visa issued for?

The O-1A period of stay is the time necessary to provide for the event or activity for which the applicant is admitted up to a period of three years. Extensions are granted in one-year increments in order to permit the applicant to continue to complete the same event or activity for which he or she was admitted.

Grants as Extraordinary Achievements

In circumstances where the O-1A applicant received a substantial grant or award supporting their work, his or her grant or award can be used as evidence of extraordinary ability, so long as it can be demonstrated that the applicant played an essential role in obtaining the grant. Receipt of a large grant is tantamount to a substantial achievement in the entrepreneur’s career, especially where the award of the grant was selective and given based on the entrepreneur’s substantial contributions to his or her field.

Memberships in Professional Associations

Entrepreneurs may also be members in distinguished professional associations relating to their field. However, such memberships must be selective and demand outstanding achievements of their members. Associations or professional organizations that are not selective or distinguished will not be sufficient for O-1A purposes. If you are an expert in a particular field for example, you may be a member of a scientific or research-based association reserved for distinguished or prominent members of your profession.

USCIS Expands O-1A category to graduates in the STEM fields

Recently, the White House introduced a series of policy changes designed to retain talented international students who have obtained a STEM (science, technology, engineering, and mathematics) degree in the United States.

As part of these initiatives, USCIS has updated its policy manual stating that, “officers may consider comparable evidence in support of petitions for beneficiaries working in STEM fields. Specifically, if a petitioner demonstrates that a particular criterion does not readily apply to the beneficiary’s occupation, the petitioner may submit evidence that is of comparable significance to that criterion to establish sustained acclaim and recognition

For instance, if the publication of scholarly articles is not readily applicable to a beneficiary whose occupation is in an industry rather than academia, a petitioner might demonstrate that the beneficiary’s presentation of work at a major trade show is of comparable significance to that criterion. As another example, 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.”

The new guidance is especially beneficial for entrepreneurs because it provides flexibility and allows entrepreneurs to present alternative evidence demonstrating extraordinary ability, such as presentation of work product for a major trade show, or evidence of highly valuable holdings in a startup company in lieu of evidence of high salary.

In addition, the revised policy guidance indicates that individuals of extraordinary ability with advanced degrees in the STEM fields, can indeed be successful in applying for the O-1A visa. Eligible STEM fields have also been expanded to include economics, computer science, mathematical economics, data science, business, and financial analytics.

Where can I find more information?

To find more information about the O-1A visa we invite you to visit our website where we provide a detailed breakdown of the criteria and the application process. If you are ready to start or want to know how you can begin, please contact us for an initial consultation at the phone number listed below.

Questions? If you would like to schedule a consultation, please text 619-483-4549 or call 619-819-9204.

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