Can O-1 Visa Applicants/Beneficiaries Set Up a Business?

The O-1 visa is a non-immigrant visa classification designated for those who are deemed individuals of extraordinary ability in various fields, including science, education, business, or athletics (O-1A), and the arts and motion picture/television (O-1B). Generally, O-1 visas must be filed by an employer or designated agent, as petitioning for oneself is not permitted under the regulations. However, the U.S. Department of State’s Foreign Affairs Manual (FAM) was amended in 2016 to allow for a legal entity owned by an alien to file an O-1 petition on his or her behalf. Specifically at 402.13-2b, it states that “USCIS regulations provide that the petitioner may be either an employer or agent. While O-1 beneficiaries may not self-petition, a separate legal entity owned by the O-1 beneficiary may be eligible to file a petition on behalf of the O-1 beneficiary.”

With this favorable amendment to the FAM guidance, a new avenue became available for O-1 applicants, who may use a legal entity that they wholly or partially own as their agent petitioner, conditioned upon whether they can fulfill the basic requirements of the O-1 (i.e. won a major award or satisfy at least 3 criteria as specified by the regulations). Notably, an O-1 petition must be approved by USCIS, which is independent of DOS. USCIS has not issued recent guidance that agrees with DOS’ new interpretation.

Now, there are two different instances in which one may want to set up a business. The first is the instance where the O-1 applicant is seeking to obtain O-1 status specifically through the business that the applicant owns, i.e. invoking the precepts of the above-referenced FAM guidance provision on “self-petitioning”. The second is the instance where a beneficiary is already in O-1 status and looking to set up a business and perform work for the business owned by the applicant. In both of these instances, an “employee-employer” relationship must exist.

The 2010 Neufeld Memo redefines an employee-employer relationship for U.S. employers, which states that if the beneficiary is “the sole operator, manager, and employee”, the beneficiary cannot be fired since he or she cannot fire himself or herself and has no other entity to do so. No employee-employer relationship exists in such a case. This requirement can be overcome by creating a separation between the applicant-entrepreneur and the company through a board of directors or an agent.

For applicants looking to petition through a self-owned company for O-1 status, the FAM guidance essentially permits an O-1 applicant to “self-petition” via an entity wholly or partially owned by him or her for work to be performed in the United States on behalf of other employers, after which the applicant can then perform additional work in the respective field of expertise during the validity period of his or her O-1 status without the need to file a new or amended O-1 petition in order to do so.

For beneficiaries already in O-1 status, setting up a business (which involves the limited acts of forming the corporation or LLC, opening the bank account for the business etc) is permissible without the need for any other form of work authorization. However, the actual running and operating of the business does require proper work authorization and fall outside the parameters of the O-1 status. Alternative options, such as the E-2 visa or EB-5, may be more suitable for such purposes. In the context of the O-1 visa, the “employee-employer” relationship as described above must exist.

As such, the O-1 applicant/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, such as a board of directors, that can fire, hire, pay, or otherwise control the beneficiary. To check if such a relationship exists, several factors should be considered, including whether there are other investors, the existence of bylaws with board members and their ability to fire, supervisory investors, etc. USCIS will scrutinize such cases, and look to a list of factors in order to determine whether such a petitioning company has the right to exert control over the beneficiary. Another alternative approach is to partner with someone with work authorization (e.g. U.S. citizen, green card holder, non-immigrant with the proper work authorization) and delegate all of the operational and managerial duties of running the business to that partner.

If you are contemplating on setting up your own business to petition for an O-1 visa or during the pendency of your O-1 validity period, and would like to learn more about the process, contact our Immigration Practice Group at 718-539-1100 or info@jckimlaw.com.