There is no clear path to a visa for entrepreneurs and start-up founders, so the O-1 is an option to which entrepreneurs are increasingly turning. The O-1 visa is a temporary work visa available to foreign nationals who have demonstrated “extraordinary ability in the sciences, arts, education, business or athletics.” It is also available to those who have demonstrated extraordinary achievement in the motion picture and television industry. The O-1 Visa is an excellent option for entrepreneurs and/or businessmen who face difficulties getting an H-1B or other nonimmigrant visas. The USCIS interprets the statute very broadly to encompass most fields of creative endeavor. Therefore, applicants mainly need to focus on demonstrating that they have been recognized nationally or internationally for their achievements.
How can I qualify for an O-1 visa based on extraordinary ability in science, education, business or athletics?
An O-1 visa in science, education, business or athletics is classified as an O-1A visa. To obtain an O-1A visa, applicants must demonstrate that they possess “a level of expertise indicating that the person apart of the small percentage who have risen to the top of the field of endeavor.” There are two ways to demonstrating this expertise. One method is through receiving a major internationally recognized award such as a Nobel Prize. The more common way is by providing documentation to satisfy at least three of the following categories:
- Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor
- Membership in associations in the field which require outstanding achievements of their members
- Published material in a professional or major trade publication, newspaper or media about foreign applicant’s work
- Participation as a judge of the work of others in the same or allied fields
- Evidence of original contributions of significance in the field
- Authorship of scholarly articles
- Evidence of employment in a critical or essential capacity for organizations with a distinguished reputation
- Evidence that the foreign applicant has or will command a high salary
- Comparable evidence that does not fit within these categories may also be submitted.
O-1 applicants also need a “consultation” letter from an industry, labor or peer group. Consultation letters are not required if no group exists that would be appropriate, though an expert letter should be submitted as an alternative.
How do I apply for an O visa?
A foreign national cannot apply for an O visa in his or her own name. They can, however, file through a US agent, employer, manager, venue, etc. If an entrepreneur has started a company, then that company may act as his/her petitioning employer. A co-founder or member of the Board of Directors will need to be the signatory on behalf of the petitioning employer for all of the immigration forms and the petition letter.
The form for petitioning for an O visa is the I-129, along with the I-129 OP Supplement. This must be submitted with a petition letter outlining the alien’s extraordinary ability, supporting evidence documenting the alien’s extraordinary ability, the consultation opinion, details of the proposed work in the US and identification documents.
How can an Entrepreneur satisfy the O-1 requirements?
The O-1 criteria are generic and were written to apply across many fields of employment. For this reason, it is important to be creative and tailor the requirements to your specific industry. For example, receipt of a prize or an award in the field of entrepreneurship can be satisfied with evidence that you received funding from outside investors. USCIS has acknowledged that venture capital funding and investments from accredited angel investors will indeed count as an award in the field of entrepreneurship. This should be backed up with supporting evidence, including the criteria the investors use to evaluate companies, the reputation of the venture capital firm or angel investor, and previous companies that have received funds from the investor.
For the “membership in associations in the field” criterion, entrepreneurs should research associations in their field that have membership requirements and join these associations before they apply for their O-1. Lots of associations for entrepreneurs exist that one may not necessarily be interested in joining, but it is extremely beneficial for the O-1 process. Similarly, if there are pitch competitions for start-ups in your field, an entrepreneur could reach out to the pitch competition and ask to serve as a judge on one of the panels for an upcoming competition. This could satisfy the fourth criterion, “participation as a judge of the work of others in the same or allied fields.” Entrepreneurs and/or businessmen can also generally make a good argument for the “employment in a critical or essential capacity” and “evidence of original contributions of significance in the field” just by the nature of their work. The arguments for these two criteria should be supported by strong letters of support from peers and other professionals in the industry. Finally, USCIS does have a comparable evidence standard that allows applicants to submit “comparable evidence” if the criteria do not readily apply to an occupation.
What is the consultation opinion?
Before a person will be granted an O-1, USCIS requires a consultation with a US-based organization.
The petition must include an advisory opinion from a peer group or a labor union in the applicant’s field of endeavor. This opinion can either state simply that the group has no objection to issuing the visa, or can detail the applicant’s achievements. If the achievements are detailed, the letter should also address the applicant’s ability, the nature of the position offered, and whether the position requires a person of extraordinary ability.
For many fields, there is not a peer group or labor union that exists in the US and the consultation may be waived. If there is no peer group or labor union for an applicant’s field, you can submit a support letter from a person with expertise in the applicant’s field. For example, there is not a union or recognized peer group for Technology Entrepreneurs, so an applicant should get a support letter from a recognized expert in the field.
Do I need an employer sponsor for an O-1?
No, but self-sponsorship is not permitted. For artists, agents, managers, concert venues and others can act as sponsors. But for entrepreneurs, sponsorship by the company the entrepreneur has founded is likely the sensible route.
What about my spouse and children?
An accompanying spouse and/or any children under the age of 21 may be eligible to apply for an O-3 visa. While they will not be eligible to work in the United States under this classification, they can engage in full-time or part-time study.
How long is an O visa valid for?
O visas are issued for the duration of the event in which the foreigner will participate for a maximum of three years. The visa can be extended in one-year increments for an indefinite period of time. Applicants should submit an itinerary for their stay in the US. Form I-129 is also used to file for an extension and applicants should include updated evidence in their application for extension.
Finally, O visas are what are known as “dual intent visas”, meaning that even though the applicant has filed a labor certification or petition for classification as a preference worker leading to permanent residence, the O visa cannot be denied for that reason.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.