O-1 Self Petition / Entrepreneur
If an applicant does not have an employer / job offer, they can still apply for an O-1. Instead of self-petitioning, which is not permitted by the USCIS, applicants can create a company that will petition for them in an Employee-Employer Relationship.
The key to "self-petitioning for an O-1", or having a company the beneficiary owns to petition for the beneficiary, is to establish employee-employer relationship.
The Neufeld Memo of 01/08/2010 redefines an employee-employer relationship for U.S. employers. Under this memo, if the beneficiary is "the sole operator, manager, and employee", the beneficiary cannot be fired since he cannot fire himself and has no other entity to do so. If the applicant cannot be fired, then an employee-employer relationship cannot exist.
On the other hand, the beneficiary can still be the "sole stockholder of a corporation" and be employed by the corporation they have majority ownership as long as there are entities that can fire, hire, pay, or otherwise control the beneficiary (i.e. a Board of Directors). To check if such a relationship exists, the beneficiary should consider the following:
- Do you have evidence of other investors (i.e. purchase agreements)?
- Do you have bylaws that list board members' names and responsibilities?
- Do the bylaws specifically state that the board has the right to fire you?
- Do other investors supervise your work on-site?
- Are there performance reviews done for you? What is your level of supervision?
- How is your day-to-day task determined?
Factors that USCIS will consider
When the USCIS receives a "self-petitioning" case, they look at a number of factors to determine if the petitioner (company) has the right to control the beneficiary. None of the following factors are decisive, but will affect the final determination.
- Does the petitioner supervise the beneficiary and is such supervision off-site or on-site?
- If the supervision is off-site, how does the petitioner maintain such supervision, i.e. weekly calls, reporting back to main office routinely, or site visits by the petitioner?
- Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
- Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?
- Does the petitioner hire, pay, and have the ability to fire the beneficiary?
- Does the petitioner evaluate the work-product of the beneficiary, i.e. progress/performance reviews?
- Does the petitioner claim the beneficiary for tax purposes?
- Does the petitioner provide the beneficiary any type of employee benefits?
- Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?
- Does the beneficiary produce an end-product that is directly linked to the petitioner’s line of business?
- Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?
Establishing Extraordinary Ability as an Entrepreneur
1. Receiving a major, internationally-recognized award (i.e. Nobel Prize)
Funding from outside investors (including venture capital funding and angel investors) qualifies as a major award. The investor must be a reputable source and have a history of selecting quality investments.
2. Fulfilling 3 of the following:
- Memberships that require outstanding achievements as judged by experts: There are many available associations that entrepreneurs can join for this O-1 qualification. Research should be done prior to starting an O-1 so that applicants can fulfill any necessary requirements for membership.
- Receive nationally or internationally recognized prizes/awards: Other sources of funding for the company may be used for this criteria.
- Publications in professional or major media such as newspapers: Any press about the company could qualify as a publication; however, it must be a reputable or professional major media (i.e. Business Today, Fortune).
- Original and major professional contributions: The company's product can be considered an original and major contribution. The impact or significance of this product can be shown through letters and other media.
- Employment in critical role for distinguished organizations: If the applicant founded the company, this criteria is usually easily fulfilled through role description, letters, and other evidence.
- Judged the work of others in field (such as pitch competitions)
- High salary in field (depends on the individual field)
- Author of articles in professional journals or other major media (if applicable)
3. Providing other evidence that shows that applicant is the top in their field
In addition to the regular O-1 process of packaging your entire case file from start to finish and training you for the mock interview, we provide additional services for clients who have not created or is in the process of creating a business for the purpose of an O-1.
We will help you create a business tailored to the factors that the USCIS will examine. This includes creating and/or examining your bylaws, articles of incorporation, minutes of the board of directors, articles of association, business hierarchy charts, and other relevant materials.