by on Bestselling author Sophie Alcorn, attorney and founder of Alcorn Immigration Law in Silicon Valley, CA, is an award-winning Certified Specialist Attorney in Immigration and Nationality Law by the State Bar Board of Legal Specialization. Sophie is passionate about transcending borders, expanding opportunity, and connecting the world by practicing compassionate, visionary, and expert immigration law. Connect with Sophie on LinkedIn and Twitter.
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Dear Sophie,
I am an international student from India who will be eligible for STEM OPT starting in January.
My plan has been to find a way to use it for my tech startup, but eventually, I need to shift to a work visa because I want to be the CEO.
Can I bypass the whole H-1B visa thing by getting an O-1A visa? If yes, can I do it with just a bachelor’s degree? What counts as extraordinary ability?
— Spirited STEM Student
Dear Spirited,
I’m so excited to hear you’re leaping into the role of a startup founder — and I’m so pleased you’re planning ahead! As always, I recommend you consult an immigration attorney for guidance. And follow your heart as you consider your path to extraordinary ability; we’ll talk more about this requirement below!
Yes — you can absolutely bypass the H-1B specialty occupation visa for the O-1A extraordinary ability visa! Nobody is ever “required” to get an H-1B, and many routes can lead to your green card. The O-1A often aligns better with the abilities and experiences of startup founders than the H-1B.
It has no firm requirements as to education or salary — unlike the H-1B — and your startup or agent can sponsor you for an O-1A. Just keep in mind that the bar for qualifying for an O-1A is higher than it is for the H-1B. That said, since there is a low barrier to entry for the annual H-1B lottery in March (currently companies pay the U.S. Citizenship and Immigration Services [USCIS] $10 per registration), ensure your H-1B eligibility with your immigration attorney and consider pursuing it in parallel as a backup.
Let’s first examine setting up your startup to qualify for F-1 STEM OPT and O-1A.
Forming a startup
If you are on regular OPT and you want to file for an O-1A potentially even before STEM OPT, consider forming the legal entity for your startup. Your corporate attorney can help you determine the best way to structure the company given your financial (venture capital) goals and immigration requirements, which I’ll go into more detail on in a moment.
Keep in mind that U.S. investors typically want to work with Delaware C corporations. Even though you incorporate in the state of Delaware, your startup can be based anywhere in the U.S., but you need to comply with state and local business registration requirements.
If you currently have F-1 OPT work authorization, you can get your company up and running and be self-employed as long as you’re putting your degree to work. You must also work at least 20 hours per week and have all the proper business licenses that your state requires. You will need to let the DSOs (designated school officials) at your university know that you are also working for your startup.
Working multiple jobs simultaneously while on OPT work authorization is allowed. You can set up the legal entity for your company, pitch potential investors, meet with prospective co-founders and negotiate personal contracts to establish the business. You can even work at your company and draw a paycheck.
If you need more time to get qualified for your O-1A and you need to avail yourself of your STEM OPT extension, your company needs to have an employer-employee relationship with you.
Your startup must complete Form I-983, which is a training plan designed for you, and must be registered on E-Verify, the free online system run by the U.S. Department of Homeland Security that tracks whether individuals can legally work in the United States.
Your startup will need sufficient resources and personnel to train and pay you to work at least 20 hours a week. Once you’re on STEM OPT work authorization, you will have 24 months to focus on building your startup and rack up your “extraordinary” accomplishments.
Gladness and hunger
The O-1A has no academic degree requirements! What do post-doctoral research fellows, entrepreneurs in hoodies, and exceptional teenagers have in common? They can all theoretically build up the right qualifications in their own field of endeavor to qualify for an O-1A!
Unlike the H-1B, the O-1A does not have a minimum education or work experience requirement. Also, your startup can sponsor you for an O-1A at any time of the year, because there is no lottery. These days, consular processing for an O-1A visa is moving pretty quickly at most U.S. consulates around the world.
What’s in a name? Well, think carefully about your field of ability, especially if you’re charting your O-1A course for the future. Instead of looking to become a generic technology entrepreneur, think about the place where, as theologian Frederick Buechner wrote, “your deep gladness and the world’s deep hunger meet.” Now just add in that third Venn circle for U.S. immigration requirements!
You must meet at least three of eight criteria for the O-1A, although I recommend four or more for a strong application. The criteria include things like winning an internationally or nationally recognized award in your field of expertise and being invited for membership to an organization that demands outstanding achievements in your field.
Take a look at this previous Ask Sophie in which I provide examples of how to meet each of the eight criteria. Keep in mind that this is the time to tout your abilities and accomplishments! Don’t be humble! If you fall short in some areas, look at this column that talks about how to improve your portfolio of accomplishments for the O-1A.
Continuing to build upon your accomplishments for the O-1A will set you up for an EB-1A extraordinary ability green card in no time.
May the world’s hunger be fed by the place where your deep gladness meets the extraordinary ability regulations!
—Sophie 🙏🙏🙏
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Sophie Alcorn, founder of Alcorn Immigration Law in Silicon Valley, CA, is an award-winning Certified Specialist Attorney in Immigration and Nationality Law by the State Bar Board of Legal Specialization. Sophie is passionate about transcending borders, expanding opportunity, and connecting the world by practicing compassionate, visionary, and expert immigration law. Get her book and connect with Sophie on LinkedIn and Twitter.
The Sophie Alcorn Podcast follows origin stories of the heart. If you’d like to be a guest, she’s accepting applications! Here’s another edition of “Ask Sophie,” the advice column that answers immigration-related questions about working at technology companies.
