The O-1, like most employment-based visas, require a sponsoring employer. Unfortunately, there is no self-petitioning option. Yet, entrepreneurs can create a company to petition themselves so long as there is an employee-employer relationship.
What is the Employer-Employee Relationship?
The way to “self-petition” under an O-1 is by having the beneficiary (the foreign national) own a company that will act as the petitioner.
Yet, creating a company is not enough. There must be a bona fide “employer-employee” relationship. The Neufeld Memo of 01/08/2010 from USCIS outlines the requirements of this relationship.
Here, if the foreign national is the “sole operator, manager, and employee,” then they cannot be fired. If the beneficiary cannot be fired, then there is no employer-employee relationship.
On the contrary, if the foreign national is the “sole stockholder of a corporation” or is the majority stockholder, then this will work so long as there are other individuals or entities that can control the beneficiary (through firing, hiring, and paying). These individuals would serve as the Board of Directors.
To test to see if such a bona fide relationship exists, the foreign national should consider the following questions:
- Is there evidence of other investors such as contracts or purchase agreements?
- Are there bylaws that show board members' names and responsibilities? The bylaws need to specifically state that the board has the power to fire the foreign national.
- Are the investors supervising the foreign national's work (on or off-site)? How much supervision is given?
- How are tasks of the foreign national determined?
Keep in mind that the O-1 employee needs to also show extraordinary ability. To learn more about the O-1 requirements for extraordinary ability please visit here.
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Immigration law can be complicated and this article does not cover all the issues regarding the O-Visa. These cases can be extremely complex, and a single misstep could potentially lead to a deportation or other immigration penalties. If you have any questions regarding your immigration case, please do not hesitate to contact our office.
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