O-1 Self Petition / Entrepreneur
If you are not employed or don’t have a job offer, you may still apply for an O-1 visa. An applicant can form a company which can petition on his/her behalf by creating an Employee-Employer Relationship. USCIS does not allow self-petitions for O-1 applicants.
The importance of creating a company to "self-petition as an O-1" is to establish an employee-employer relationship.
The employee-employer relationship has been defined by the August 2010 Neufeld Memo for the U.S. employers. The memo stated that if the beneficiary is a manager, sole operator or an employee, he/she cannot be fired because he/she is not in a position to fire one self and no other entity can do so. An employee-employer relationship is nonexistent where it is impossible to fire the applicant.
However, the beneficiary can be “a company’s sole stockholder " and work for the company with majority ownership provided that other individuals in the entity can hire, fire, pay, or control the Board of Directors.
To verify the existence of such a relationship, the following should be considered by the beneficiary:
- Presence of investor evidence (e.g. purchase agreements);
- Availability of bylaws which enumerate the names and responsibilities of board members;
- The right of the board to specifically fire the foreign national under the bylaws ;
- Supervision of the foreign nationals on site work by other investors;
- Availability of the foreign national’s performance reviews and supervision level; and
- Determination of the foreign national’s daily tasks.
Factors Considered by USCIS
In considering a "self-petitioning" case, USCIS will consider several factors in order to decide if the company (petitioner) is entitled to “control” the beneficiary. This control is determinative and essential in such cases.
However, none of the factors below are decisive though they impact the ultimate determination:
- Is the beneficiary supervised by the petitioner and is the supervision on-site or off-site?
- How is the supervision maintained by the petitioner in off-site cases (i.e. routine reporting to head office, weekly calls, or the petitioner’s site visits)?
- Is the petitioner entitled to the control of the beneficiary’s work on a daily basis, if necessary?
- Are the instrumentalities or tools required for the beneficiary to carry out the employment duties provided by the petitioner?
- Does the petitioner have the right to hire, fire, and pay the beneficiary?
- Is the beneficiary’s work-product evaluated by the petitioner i.e. performance and/or progress reviews?
- Is the beneficiary claimed by the petitioner for tax purposes?
- Is the beneficiary provided with any form of employee benefits by the petitioner?
- Does the beneficiary utilize the petitioner’s proprietary information for purposes of performing the employment duties?
- Does the beneficiary create the final product which directly relates to the petitioner’s specialization?
- Can the petitioner control the way the beneficiary’s work product is accomplished?
Establishing Entrepreneurial Extraordinary Ability
Remember that even if the foreign national establishes an employer-employee relationship, the O-1 beneficiary still needs to illustrate “extraordinary ability.”
This can be done by showing “extraordinary ability” as an entrepreneur by showing the following:
- Receiving an internationally-recognized award, such as the Nobel Prize or receiving significant outside investor financial assistance qualifies as an important prize (these include angel investors, venture, and capital funding). The investor should have a good reputation with a history of quality investment selection
- Meeting three of the following;
- Membership in an organization that requires exceptional achievements;
- Receipt of internationally or nationally recognized awards that may serve as additional funding sources for the company;
- Media or professional publications. Any press concerning the company can be a publication, but it has to be from a professional or reputable mainstream media source (e.g. the Fortune and the Business Today);
- Major and unique professional contributions. The product of the company may be considered a major and original contribution. Letters and other forms of media can be used to show the significance of this product;
- Employment in significant position for distinguished companies: If the company was founded by the applicant, this criterion can be accomplished via letters and role description among other evidence;
- Field judgment of others’ work (e.g. pitch competitions);
- High remuneration within field based on the individual field;
- Article writer of professional journals and other main media./
- Provision of other evidence which demonstrates the importance of the applicant in their field.
Apart from the standard O-1 process, which entails preparing your case file and conducting a mock interview, we assist you in tailoring your business that is customized to address the issues to be examined by the USCIS. This comprises of creation and examination of your bylaws, incorporation articles, the board minutes, business hierarchy charts and articles of association among other significant materials.
To schedule an initial consultation with us today, don't hesitate to contact us at (949) 478-4963.
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