Have you ever wondered how you can work in the United States as the founder of your very own startup? If so, you may be interested in learning more about the O-1A visa. In this video attorney Jacob Sapochnick discusses the criteria for individuals who possess extraordinary ability in business and are seeking to open a venture-backed startup in the United States.
Did you know? An approved O-1A visa applicant can remain in the United States for an initial period of 3 years working for the petitioning entity and bring their family members to live with them in the United States. The O-1A visa also opens a pathway for applicants to apply for permanent residency by filing for the EB-1A employment-based immigrant visa category.
Want to know more? Just keep on watching.
What is the O-1A visa?
First let’s discuss the O-1A nonimmigrant visa. The O-1A visa is designed for individuals who possess extraordinary abilities in the field of business, science, education, or athletics, and who can meet a specified set of criteria that must be demonstrated in the application package to ensure the applicant’s success.
Those who successfully attain the O-1A visa can live and work in the United States for an initial 3-year period, and pitch ideas to venture capitalists interested in supporting their company.
How can you demonstrate extraordinary ability in business?
To demonstrate extraordinary ability, applicants must be prepared to show evidence of a major internationally recognized award (such as a Nobel Peace Prize), or if the applicant does not have such an award, they must meet at least three of the following criteria which we discuss in turn below:
- AWARDS—Documentation of the beneficiary’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor
The first criterion is providing documentation showing that you have received nationally or internationally recognized prizes or awards for excellence.
How does this translate to the startup world? There are several ways that one can qualify for this criteria as a startup founder. For instance, if you have received a grant from the government recognizing your proposed endeavor as one that is exceptional, you may be able to use the grant as evidence to meet this criteria. Alternatively, if you were a participant in a prestigious or distinguished event or competition, and you were one of the winners or finalists in the competition, you may also use documentary evidence of your participation to meet this criteria.
Those who have received substantial backing from venture capitalists for their startup company in the form of investment capital, can also utilize this evidence to meet this criteria. The bottom line is that the documentation you provide must demonstrate that you or your startup have been recognized for your excellence in the field either in the form of financial backing, or recognition in a prestigious competition where you were one of the few startups or participants that reached the top level in your category. There is no minimum amount of funding or capital that is required to be shown under the law, the key factor is to demonstrate recognition for excellence in your field.
Family members or angel investors in your startup company will not qualify. Capital must be raised by a venture capitalist fund that is authorized to invest in other startup companies. Further evidence can also be provided to establish the credibility and reputation of the venture capitalist fund, such as evidence of investment in other reputable startup companies.
Additionally, venture capital raised for past projects or companies can qualify you for this criteria. You will need to carefully assess your past work along with an experienced attorney to determine whether past work will help you meet this criteria.
If you do not yet meet the awards requirement, you may also consider applying to a business accelerator or incubator such as Y Combinator, 500 Startups, Techstars, and many other such entities that are on the hunt for rising startups to show recognition for excellence in business.
- CRITICAL/LEAD ROLE: Evidence that the beneficiary has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation
The second criterion is providing evidence that you have been employed in a critical or essential capacity for companies or organizations that have a distinguished reputation. This is shown by providing letters of recommendation from individuals you have worked with for current and past employers, who can attest to your critical and leading role. If you have worked as a startup founder, director, or in a managerial type of role, this criteria is relatively straightforward to meet.
Additionally, one can show that the organization had a distinguished reputation, by providing for example, articles about the company in the major media or any other documentation that shows the company is well regarded in the field. Information about the company’s clients or brands the company has worked with in the past, can also help show that your past employer has a distinguished reputation.
- PRESS—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
The third criterion is publications about you or your work in the major media (national or international).
If you have been interviewed or appeared in major media articles in outlets that have substantial traffic, providing copies of these articles will be helpful to meet this criterion. If you do not have publications about yourself or your work, it may be worth considering working with a PR team who can help put a spotlight on your work and accomplishments in your field by connecting you with major media outlets. This may or may not be necessary depending on the strength of your overall case. Remember that foreign publications can also be used to meet this criterion as long as they are relevant. You do not need to rely on American media outlets.
- JUDGESHIPS—Evidence of the beneficiary’s 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
The next criterion is judgeships on a panel or individually where you have judged the work of others in the same or a related field. Being a judge in a competition in your field can help you meet this criterion to show that you are a person of extraordinary ability in your field. The purpose of showing that you have judged the work of others is to demonstrate to immigration that you have sufficient expertise and are at the top of your field.
If you do not meet this criterion, remember this is just one of the requirements of the O-1A visa. You are only required to meet 3 criteria to be successful.
- MEMBERSHIPS—Documentation of the beneficiary’s 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
Membership in prestigious professional associations or organizations is another criterion that can help you qualify for the O-1A visa, so long as they require outstanding achievement of its members. Immigration is specifically paying close attention to the reputation of the association, the selectivity of the association in selecting members, and its membership requirements. Associations that are selective or exclusive are the most beneficial to meet this criterion. If you are or can become a member of such associations, your chances of approval will increase significantly.
- HIGH SALARY—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.
Another relatively straightforward criterion is showing that you have received a high salary from your current employer or past employer for your position when compared to others. Statistics regarding salary information for your position and geographic region, can help demonstrate that your salary is considered within the top range for your region. This can include government salary database statistics, or wage salary statistics such as Payscale methodology.
An easy way to demonstrate high salary is by providing an official personal income tax return declaration, copies of your paystubs, bank statements, contracts, or a letter from your employer on company letterhead stating your annual salary during the relevant period.
Venture backed startup founders may also use documentation showing the equity they have in the company to demonstrate high salary, such as financial statements prepared by an accountant.
- SCHOLARLY ARTICLES—Evidence of the beneficiary’s authorship of scholarly articles in the field, in professional journals, or other major media
Yet another criterion of the O-1A is providing documentation of scholarly articles written by you in research publications or peer-reviewed journals. Most often this requirement will apply to researchers and scientists, however scholarly articles written in business or finance related publications will qualify for this criterion.
- ORIGINAL CONTRIBUTIONS—Evidence of the beneficiary’s original scientific, scholarly, or business-related contributions of major significance in the field
Finally, the last requirement is evidence of original contributions of major significance in the field of business. This criterion is a catch-all category for any other documentation that might not fit neatly in any of the other factors. Trademarks, patents, or intellectual property documentation are often provided for this category, as well as high profile contracts or business dealings.
To summarize, applicants must only meet at least 3 of the 8 criteria in order to qualify for the O-1A visa. Once you have received your O-1A visa you can freely work for your startup company in the United States and continue to raise funds for your business venture. Eventually, you can apply for permanent residency through the EB-1A category. If you would like to discuss whether the O-1A is the right visa for you, we invite you to contact our office for a consultation.
Questions? If you would like to schedule a consultation, please text 619-483-4549 or call 619-819-9204.
- O-1A Visa
- July 2022 Visa Bulletin
- Adjustment of Status Filing Dates from Visa Bulletin
- DOS YouTube Channel
- Blog Post: What is happening with the EB-5 Regional Center Program?
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