Do Startup Founders Qualify for the O-1 Visa?

Startups and entrepreneurial businesses are on the rise in the United States. If you’re a foreign-born founder or thinking about starting your own business, you may be wondering what your immigration options are. Since you don’t have a traditional employer-employee relationship with a U.S. company, you’ll need to explore different alternatives to obtain a work visa. 

Let’s say you’re a startup founder who wants to live and work in the U.S. Whether your startup is VC funded or you’re bootstrapping, one possible work visa to consider is the O-1A. 

The O-1A visa is a non-immigrant visa category specifically designed for individuals with extraordinary ability in the sciences, education, business, or athletics. This visa is for individuals who have demonstrated a high level of achievement in their field and are coming to the U.S. to continue their work in their area of expertise.

There’s a common misconception that a startup must be generating revenue or have significant investment before the founder can qualify for an O-1A. The O-1A comes with specific requirements that founders must satisfy before applying, but funding is not a dealbreaker when it comes to eligibility. Let’s take a closer look at the O-1A requirements:

Employer Sponsorship

Do you need an employer to sponsor you for an O-1A visa? While most work visas are tied to a specific employer or job offer, the O-1A visa is different. 

The O-1A visa does require an employer or an agent acting on your behalf to file a petition with U.S. Citizenship and Immigration Services (USCIS). When applying with an agent as your sponsor, the agent must meet specific requirements. Namely, the agent must be your employer, a representative of the employer and beneficiary, or someone specifically authorized by the foreign employer. Additionally, the agent must guarantee the foreign worker’s wages, terms and conditions of their employment, and an itinerary of definite employment.

So while the individual seeking the O-1A visa does not need to have a specific job offer in hand when applying, they do need an employer or agent who meets the government’s requirements and is able to provide evidence of their extraordinary ability and achievements in their field.

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Meeting Three of Eight Criteria

In order to qualify for an O-1A visa, you’ll have to demonstrate extraordinary ability in your field through a combination of criteria. While there are no specific criteria set by law, the regulations provide a list of eight possible pieces of evidence that can be used to support your application. 

Applicants must provide evidence from at least three of these eight categories to demonstrate extraordinary ability in their field. Here’s a breakdown of the eight categories or types of evidence that applicants can use to satisfy the criteria:

1. Receipt of Awards or Prizes: Evidence of receiving significant awards or prizes for excellence in the field.
2. Membership in Professional Associations: Membership in professional associations or organizations that require outstanding achievements of their members.
3. Published Material: Evidence of published material about the applicant’s work in professional or major trade publications or other major media.
4. Judging the Work of Others: Service as a judge of the work of others, either individually or on a panel.
5. Original Contributions: Evidence of original scientific, scholarly, or business-related contributions of major significance.
6. Authorship: Authorship of scholarly articles or publications in professional journals or other major media.
7. High Salary or Remuneration: Evidence of a high salary or other substantial remuneration for services in relation to others in the field. For startup founders, this could be the equity you hold in your company. Note: Stock options do not count. 
8. Work in a Critical Role for Organizations or Establishments: Evidence of participation in a critical or leading role for organizations or establishments that have a distinguished reputation.