Immigration Lawyers Toolbox Magazine
O-1As FOR STARTUP FOUNDERS Without an official “startup visa” in the
United States yet, the O-1A category offers a great option for international founders to work at their startups—and offers a far less rigid alternative to the H-1B. In fact, the number of O-1A applications filed with U.S. Citizenship and Immigration Services (USCIS) has steadily increased during the past several years until COVID-19 hit last year.
Sophie Alcorn, Esq. Hello@Alcorn.Law
Unlike the H-1B, the O-1A is not subject to a cap or lottery, labor condition application, or rigid occupational categories. Although the eligibility requirements for an O-1A are more demanding than the H-1B, even individuals who are in the early stages of their career can qualify if they can show extraordinary ability in their field in their country. And the O-1A allows for unlimited extensions and offers a fairly quick process, particularly if the candidate is already in the United States.
Moreover, no minimum salary is required by the O-1A, which will be another benefit to that category given that the H-1B lottery is expected to be a wage-based selection process next year and includes the element of “ability to pay”. Many startups would be disadvantaged by a wage-based selection process for H-1Bs, particularly since equity or stock options in the company, bonuses, and other non-wage compensation given to founders cannot be included in wage calculations. The key to a successful O-1A filing is to develop a relevant and creative strategy for demonstrating the startup founder’s abilities and achievements are extraordinary in their field of expertise in their home country or in the United States.
58
ILT Magazine
Issue No . 3
by SOPHIE ALCORN, Esq.
Defining the field Strategically defining an O-1A candidate’s field of endeavor can make or break an O-1A petition. If the field is too broad, it will be difficult to make the case that the individual is extraordinary. The more narrow and specialized the field of endeavor is—even better if it’s a cross-section between two fields, such as data analysis and entrepreneurship—will increase the chances for approval. But also watch out that it’s not too narrow! It’s like Goldilocks’ porridge.
The O-1A offers applicants wide flexibility—no specific areas or rigid occupational categories—in defining the startup founder’s niche to prove to USCIS that she or he is at the top of the field. The O-1A candidate should invest the time and effort to come up with a list of specialized skills and how those skills resulted in significant accomplishments. Most USCIS adjudicators seem to be looking for O-1A beneficiaries that are anywhere within the top 1 to 20 percent of their field of endeavor—backed by strong evidence, of course. Most startup founders can easily be positioned within this wide range.