Sponsoring the O-1 Visa Through Your Own Company

The O-1 visa is a nonimmigrant classification for applicants with extraordinary ability in fields such as science, education, business or athletics (O-1A), or in the arts and film/television (O-1B).

As a rule, O-1 petitions must be filed by an employer or by a designated representative, sponsor or agent, because the regulations do not allow you to file for yourself. 

1Possible with your own company since 2016

In 2016, however, the US State Department amended its Foreign Affairs Manual (FAM) so that an entity owned by a foreign national can file an O-1 petition on their behalf. Section 402.13-2b states: "USCIS regulations provide that the petitioner may be either an employer or an agent. While O-1 beneficiaries may not self-petition, a separate legal entity owned by the O-1 beneficiary may be able to file a petition on behalf of the O-1 beneficiary."

This welcome change to the FAM guidance opened a new path for O-1 applicants: an entity they own in whole or in part can act as the authorized petitioner, as long as they meet the basic O-1 requirements (that is, they have won a major award or meet at least three criteria under the regulations). 

2Ideal for European tech startup founders

For Europe's tech startup scene, this rule has turned out to be a blessing. More and more founders are now moving to the USA on the O-1 visa. The fact that founders usually earn a high salary and then raise millions in capital from US VCs is enough to demonstrate extraordinary ability for the O-1 visa.

We have a dedicated page on this topic, where you'll find every detail of the O-1 petition for startup founders.

3New application or existing O-1 visa?

There are two different situations in which you might want to set up a company. In the first, the O-1 applicant seeks O-1 status specifically through the company they own, relying on the "self-petitioning" provisions of the FAM guidance above. In the second, the beneficiary already holds O-1 status, sets up a company and wants to work for that company they own. In both cases, an "employer-employee relationship" must exist.

The Neufeld Memo of 2010 redefined the employer-employee relationship for US employers; USCIS rescinded it on June 17, 2020 (PM-602-0114). Under the memo, a beneficiary who was "the sole operator, manager and employee" could not be fired, because they cannot fire themselves and no one else could do it. In that case, no employer-employee relationship existed. This could be overcome by separating the petitioning entrepreneur from the company through a board or an authorized representative. 

4Your US company needs a manager

In practice, this means your US company must have a manager, and that cannot be you as the beneficiary of the O-1 petition. The manager should be someone you trust, but does not have to live in the USA. Of course, they need to be aware of and accept things like manager liability and being named in public company records.

For applicants who want to petition for O-1 status through their own company, the FAM guidance essentially allows an O-1 applicant to "self-petition" through a company they own in whole or in part for work to be performed in the United States for other employers. During the validity of their O-1 status, the applicant can then take on additional work in their field without filing a new or amended O-1 petition.

If you already hold O-1 status, you may set up a company (the limited acts of forming a corporation or LLC, opening a bank account for it and so on) without any other work authorization. Actually running and operating the business, however, requires proper work authorization and is not covered by O-1 status. Alternatives such as the E-2 visa or the EB-5 visa may be better suited for that. For the O-1 visa, the employer-employee relationship described above must exist.

5The manager must be allowed to fire you

So the O-1 applicant/beneficiary can still be the sole shareholder of a company and be employed by the company in which they hold the majority stake, as long as there is a body, such as a board, that can fire, hire, pay or otherwise control the beneficiary. To check whether such a relationship exists, several factors should be considered: whether there are other investors, whether there are bylaws with board members and whether those members can be removed, whether investors provide oversight, and so on. USCIS will look closely at these cases and use a list of factors to determine whether the petitioning company has the right to control the beneficiary. 

Another option is to team up with someone who has work authorization (for example a US citizen, a green card holder or a nonimmigrant with the appropriate work authorization) and hand that partner all operational and management duties of running the business.

6Next steps

Mount Bonnell Advisors has helped many entrepreneurs make the dream of living in the USA come true, including a good number of O-1 visa cases. We work with excellent US immigration attorneys in America and Europe who will support your plans together with us, every step of the way. You'll find all our articles on the topic in our O visa overview.

In short

• The regulations do not allow self-petitioning, but a separate legal entity you own can file the O-1 petition for you.
• An employer-employee relationship must exist between you and the company.
• For that, your US company needs a manager or board that can hire, pay and fire you.
• You may set up a company in O-1 status; running and operating it yourself requires separate work authorization.

How we help you

• Visa Roadmap for Company FormationFormation and visa in one plan, so the company carries the visa.
• Form a CorporationThe US corporation (Inc) for growth, investors and your visa.
• Visa RoadmapIn writing: which visa fits you and your family, prepared with the immigration attorney on the firm's team.
• Visa and Green Card ConsultationWhich route to the USA fits you, settled in one conversation.