Focus on the O-1 Visa for Immigrants in the Emerging Tech Space

Foreign-born entrepreneurs are critical to the advancement of the U.S. emerging technology industry.  There are a number of visa options, both immigrant and non-immigrant visas, available to entrepreneurs and investors in the emerging tech space. This post will offer an overview of the O-1 visa, a non-immigrant visa.

There are two types of O-1 visas with the O-1A visa being reserved for those who can demonstrate extraordinary ability in the sciences, education, business, or athletics (the O-1B visa is reserved for individuals with extraordinary ability in the arts or extraordinary achievement in film or television).  Some of the most significant tech innovation is attributed to foreign nationals in the United States.  A foreign national who develops or invents new technology may be eligible for the O-1 visa based on their extraordinary abilities in science or business.

It is important to note the O-1A visa does not permit self-petitioning, rather an employer/US agent has to sponsor the foreign national.  In certain cases, if the foreign national entrepreneur owns and founded the company, the company may be able to serve as the O-1 visa sponsor without the restrictions commonly associated with the H-1B visa category.  This requires a very detailed and fact specific analysis.

Specific requirements exist in order to qualify for the O-1 visa.  The individual must demonstrate extraordinary ability by sustained national or international acclaim, and the individual must be coming to the United States to continue work in the same field.  The first question to enter a foreign national’s mind is: what is extraordinary ability?  The government defines extraordinary ability to  constitute those immigrants who are part of a small percentage of those who have risen to the very top in the field.  This is evidenced by satisfying the government criteria as set forth below:

A. Evidence of receipt of a major internationally recognized award (i.e.:  Nobel Prize), OR

B. Evidence of at least three of the following:

a. Receipt of (lesser) nationally or internationally recognized prizes or awards for excellence in the field

b. Membership in associations in the field which require outstanding achievements, as judged by recognized national or international experts in the field

c. Published materials about the individual and their work in the field

d. Original scientific, scholarly, or business-related contributions of major significance in the field

e. Authorship of scholarly articles in the field

f. Receipt of a high salary or other remuneration for services as evidenced by contracts

g. Participation on a panel , or individually, as the judge of the work of others in the field

h. Employment in a critical or essential capacity for organizations or establishment of distinguished reputation

The above listed criteria readily apply to an O-1A visa application in the emerging tech space.  Many technology innovators may be able to satisfy the following three criteria:  original scientific/business-related contributions of major significance; employment in a critical or essential capacity for organizations of distinguished reputation; and published materials about the individual and work in the field.  Additionally, foreign nationals in the emerging tech space may develop new technology that receives significant national or international recognition in the form of receipt of major awards or other prizes or awards recognizing excellence in the field.

The O-1 visa application requires a skilled immigration lawyer with an in-depth knowledge of both the visa requirements and how USCIS adjudicates the petition.  The O-1 is a non-immigrant visa, meaning it is intended for temporary stays in the United States.  If approved, the initial visa may authorize a period of stay up to three years.  An extension of stay may be issued by USCIS depending on the time necessary to accomplish the initial event or activity in increments of up to one year.  The O-1 visa holder may only engage in authorized employment pursuant to the terms proffered in the petition.