O-1 VISAS FOR ENTREPRENEURS OF EXTRAORDINARY ABILITY

O-1 VISA BASICS

O-1 visa applicants must demonstrate extraordinary ability in their field. This is a high standard, so O-1 visas are not usually the first option to consider. But for those with significant, documented experience or academic credentials (such as a Ph.D. graduate or postdoc or junior researcher who wants to try an entrepreneurial venture), the O-1 is worth considering.

Startup entrepreneurs’ resumes should be carefully reviewed to determine if they are currently eligible for an O-1 visa or if they might become eligible over the next few years. For example, starting a business in the United States based upon a new technology, and the demonstrated ability to create jobs in the United States, may meet two criteria for O-1s. During the OPT timeframe, an F-1 entrepreneur can write articles that are published, give speeches, present at conferences, and be a judge of the work of others. All these encompass criteria needed to meet the extraordinary ability test for an O-1.

O-1 visas are granted for the duration of an “event” (i.e. a grant, project, tour, etc.) and for an initial period of no longer than three years. There is no limit on extensions for the O-1 visa, which are granted in increments of one year at a time if the extension is with the same employer and for the same event. However, the O-1 can be extended for a three-year period if it is for a different employer of a different event.

WHAT IS “EXTRAORDINARY ABILITY?”

To establish extraordinary ability the individual must either demonstrate a one-time international achievement at the caliber of an Olympic medal, an Oscar or Nobel prize, or satisfy at least three of the following eight criteria:

Receipt of lesser nationally and internationally recognized prizes or awards for excellence in the field of endeavor;
Membership in associations in the field that require outstanding achievements of their members, as judged by experts in the field;
Published materials about the individual in professional or major trade publications, or appearance/published materials about the individual in other major media;
Participation, either individually or as part of a panel, as a judge of the work of others in the field (including requests to serve as a reviewer/referee for articles to be published, invitations to serve on discussion and advisory panels, etc.);
Original scientific, scholarly, artistic, athletic or business-related contributions of major significance in the field;
Authorship of scholarly articles in the field, as published in professional or major trade publications or in other major media;
Serving in a critical or essential capacity for organizations or establishments that have a distinguished reputation; and/or
Commanding a high salary or other significantly high remuneration for services, as compared to others in the field.

BENEFITS OF AN O-1 VISA

Even though the standard is high, an O-1 visa is worth considering for several reasons:

There are no citizenship or prior employment requirements.
There is no prevailing wage issue, as with the H-1B. This can be a great advantage for a startup that does not yet have a revenue stream.
J visa holders who are subject to the two-year home residency requirement are eligible for an O visa. They cannot change status in the United States, however, and must consular process.
Unlike the H-1B visa category, there is no annual limit on the number of O visas that may be granted in any fiscal year.
There is no minimum degree requirement.
Dual intent is essentially allowed. An individual does not have to keep a foreign residency, and filing for permanent residency does not disqualify them from obtaining an O visa.
If an individual qualifies for an O-1 visa, he or she may qualify to petition for permanent resident status based on extraordinary ability in the employment-based first (EB-1) category. That category does not require a permanent job offer and also bypasses the lengthy labor certification process. An EB-1 applicant can self-petition without the need for an employment offer or an employer sponsoring them.