Nonimmigrant or Parole Pathways for Entrepreneur Employment in the United States
Temporary pathways offer opportunities to start and manage a business in the United States for a specified length of time. They do not provide lawful permanent residence, although some people who come to the United States on nonimmigrant visas or parole subsequently transition to permanent resident pathways, and eventually U.S. citizenship. Some of these pathways also permit you to bring your spouse and children under the age of 21 with you to the United States.
International Entrepreneur Rule
Under the International Entrepreneur Rule, DHS may use its parole authority to grant a period of authorized stay, on a case-by-case basis, to noncitizen entrepreneurs who demonstrate that their stay in the United States would provide a significant public benefit through their business venture and that they merit a favorable exercise of discretion. (This period of authorized stay is technically called “parole.”)
What level of ownership and role in the start-up entity is required?
You must have a substantial ownership (which USCIS considers to be at least 10% at time of initial application adjudication) in the start-up business and have a central and active role in its operations.
What are the requirements for the start-up entity?
The start-up must be a U.S. business entity that is lawfully conducting business in the United States and was formed within the five years immediately preceding the application for initial parole. It must also have substantial potential for rapid growth and job creation.
What type and level of funding are required to demonstrate that the start-up entity has the substantial potential for rapid growth and job creation?
You must be able to document that, within the past 18 months, the entity received the following funding:
- A qualified investment of at least the required amount from a qualifying investor (currently $264,147);
- A qualified award or grant of at least the required amount from a U.S. federal, state, or local government entity (currently $105,659); or
- In the alternative, if the start-up entity partially meets one or both of the above funding levels, you may submit additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.
While you are not precluded from personally investing in the start-up entity or otherwise securing additional funding, only qualified investments from a qualifying investor count towards the minimum investment amount.
A qualified investor:
- Is an individual who is a U.S. citizen or lawful permanent resident of the United States, or an organization that is located in the United States and operates through a legal entity organized under the laws of the United States or any state, that is majority owned and controlled, directly and indirectly, by U.S. citizens or lawful permanent residents of the United States;
- Regularly makes substantial investments in start-up entities that subsequently exhibit substantial growth in terms of revenue generation or job creation; and
- During the preceding five years:
- Made investments in start-up entities in exchange for equity, convertible debt, or other security convertible into equity commonly used in financing transactions within their respective industries comprising a total in such five-year period of no less a certain investment amount (currently $633,952); and
- Subsequent to such investment by such individual or organization, at least two such entities each created at least five qualified jobs or generated revenue of at least a certain amount (currently $528,293), with average annualized revenue growth of at least 20 percent.
A qualified investor is not:
- You or any of your immediate relatives;
- An organization in which you or your immediate relatives have a direct or indirect ownership interest;
- Permanently or temporarily enjoined from participating in the offer or sale of a security or in the provision of services as an investment adviser, broker, dealer, municipal securities dealer, government securities broker, government securities dealer, bank, transfer agent or credit rating agency;
- Barred from association with any entity involved in the offer or sale of securities or provision of such services; or
- Otherwise found to have participated in the offer or sale of securities or provision of such services in violation of law.
A qualified investment means a purchase from a start-up entity of its equity, convertible debt, or other security convertible into its equity commonly used in financing transactions within such entity's industry.
For information on the qualifying amounts, which adjust every three years for inflation, see updated alerts on International Entrepreneur Parole page.
Can my spouse and children accompany me to the United States?
The spouse and children of an applicant for parole can also apply for parole by filing Form I-131, Application for Travel Document.
Can my spouse work in the United States?
Spouses of noncitizens, after being paroled into the United States under the International Entrepreneur Rule, may apply for employment authorization by filing Form I-765, Application for Employment Authorization.
What is the maximum time I may remain in the United States under the International Entrepreneur Rule?
You may be granted an initial period of stay for up to two-and-a-half years. If approved for re-parole, you may receive up to another two-and-a-half years, for a maximum of five years.
Can I apply from outside the United States?
Yes, as long as you and the start-up entity meet all of the criteria for consideration. If you are an applicant residing outside the United States and seeking an initial period of authorized stay under the International Entrepreneur Rule, you must submit biometrics. We will send you a notice explaining where to submit biometrics after we coordinate with the Department of State (DOS) or the International USCIS field office closest to you.
Can I change to an immigrant or nonimmigrant status?
At any time during the period of authorized stay, you may apply for classification as an immigrant or nonimmigrant, if you are eligible. However, as parole is not admission, you would generally be ineligible for adjustment or change of status and would be required to depart the United States to apply for admission as an immigrant or nonimmigrant, as applicable.
Can I apply if I am in nonimmigrant status, such as B-1 or F-1? Can I apply if I have overstayed the term of my nonimmigrant status, but I believe I fulfill the other criteria?
If you are currently in the United States in nonimmigrant status, you can apply, but you would have to depart the United States to be paroled back in if authorized. If you are not presently maintaining nonimmigrant status you may also apply, but you would have to depart the United States to be paroled back in if authorized. However, a failure to maintain your nonimmigrant status may result in immigration consequences including but not limited to removal, inadmissibility, and being barred from adjustment of status in some categories.
For a more detailed FAQ, see the International Entrepreneur Rule page.
You may be eligible for a B-1 visa if you are coming to the United States as a business visitor in order to secure funding or office space, negotiate a contract, or attend certain business meetings in connection with and prior to opening and operating a new business in this country.
What is a short period of time?
The B-1 nonimmigrant visa category is not meant for extended, long-term activity, but rather for a definite and specific activity. The maximum period of initial admission to the United States as a B-1 nonimmigrant is typically six months, but the actual period of admission will be for a period which is fair and reasonable for completion of the purpose of the visit (and therefore may be less than six months).
In no case may the initial period of admission as a B-1 be for more than one year. Extensions of B-1 stay may be available to complete the purpose of your visit to this country. With limited exceptions for certain missionaries, extensions of stay may not be granted in intervals of more than six months each. You must be able to show you have sufficient funds to cover the expenses of the trip and your stay in the United States. You must also show you maintain your residence abroad, which you have no intention of abandoning, and that you have other binding ties which will ensure your return abroad at the end of the visit.
What type of business activities may I engage in?
You may participate in business activities of a commercial or professional nature in the United States including, but not limited to:
- Attending meetings;
- Consulting with associates;
- Engaging in negotiations;
- Taking orders for goods produced and located outside the United States; or
- Attending conferences, and researching options for opening a business in the United States (such as locating or entering into a lease for office space).
As a B-1 visitor, you cannot engage in any activity or perform a service that would constitute local employment for hire within the United States, that is, work for a U.S. employer while in this country. Further, you may not, for instance, “hang up a shingle,” that is, open and operate your own business in the United States while in B-1 status
If you are coming to secure funding for a new business, you cannot remain in the United States after securing the funding to start actual operations or to manage the business, unless you change status to another classification that authorizes employment in the United States.
Is any salary permitted?
It is permissible to conduct business activities on behalf of a foreign employer, but no salary may come from a U.S. source. In some cases, however, you may receive reimbursement from a U.S. source for reasonable incidental expenses incurred while in the United States.
Note: There can be no guarantee that the U.S. Department of State (DOS) will issue you a B-1 visa, or that DHS will grant you B-1 status, even if you present the evidence described above. A consular or DHS officer will consider all the relevant facts before determining whether to issue a visa or grant status. As such, it is important to fully explain the purpose of your visit or stay and the activities you will be doing, so that DHS (or DOS) can make an informed decision on your application.
You may be eligible for an E-2 visa if you invest a substantial amount of money in a new or existing U.S. business. You must be a national of a country that has a treaty of commerce and navigation with the United States, a country included in another international agreement authorizing E-2 classification, or a country designated by Congress as eligible for participation in the E-2 nonimmigrant visa program. For a list of these countries, visit the Department of State website.
Note: If your treaty country nationality was obtained through a financial investment, you must show that you were domiciled in the treaty country for three continuous years prior to the time of filing.
What are the requirements for investment in a new or existing enterprise?
USCIS defines an E-2 investment as the investor’s placing of capital, including funds and other assets, at risk in the commercial sense with the objective of generating a profit. Your investment may be for the purpose of establishing a new business venture or purchasing a pre-existing business. In either scenario, you must demonstrate that the capital you are investing is substantial.
A bona fide enterprise is one that is a real, active commercial or entrepreneurial undertaking which produces services or goods for profit. The enterprise cannot be an idle investment held for potential appreciation in value, such as undeveloped land or stocks held by an investor who has no intent to direct the enterprise. Some of the evidence you may submit to demonstrate that your business is bona fide includes, but is not limited to:
- Notice of assignment of an Employer Identification Number from the Internal Revenue Service (IRS);
- Tax returns;
- Financial statements;
- Quarterly wage reports or payroll summaries (that is, W-2s and W-3);
- Business organizational chart;
- Business licenses;
- Bank statements, utility bills, and advertisements/telephone directory listings;
- Contracts or customer/vendor agreements;
- Escrow documents; or
- Lease agreement.
A marginal enterprise is one that will not generate more than enough income to provide a minimal living for you and your family or to make a significant economic contribution. Some of the evidence you may submit to demonstrate that your business is not marginal includes, but is not limited to:
- Detailed business plan or executive summary showing that your business will produce more than a minimal living for you and your family or will create a significant economic contribution, along with any evidence that you believe will support the statements in your business plan;
- U.S. or foreign individual tax returns;
- Financial statements; or
- Payroll summaries (that is, W-2s and W-3).
What is required to show I am invested or actively in the process of investing?
You must demonstrate that the capital you invest is irrevocably committed to the enterprise and subject to partial or total loss if the entity fails. The funds you invest must also be your own. Additionally, the invested funds must be substantial in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise you are considering. Some of the evidence you may submit to demonstrate that your investment is substantial and irrevocably committed to the enterprise includes, but is not limited to:
- Canceled money orders and/or checks;
- Corresponding personal and/or business bank statements;
- Itemized list of goods and materials purchased for the start-up;
- Corresponding financial accounting documentation;
- Lease agreement;
- Term Sheet, Letter of Intent, or Memorandum of Understanding;
- Bill of sale;
- Escrow documents;
- Loan and/or mortgage agreements;
- Capitalization table;
- Valuation analysis of business assets;
- Purchase agreement for business assets;
- Valuation analysis of stock; or
- Stock purchase agreement, accompanied by:
- Meeting minutes;
- Stock ledger;
- Stock certificate; and
- Corresponding forms of payment for stock.
What must I show regarding the source of funds?
You must show a clear and legitimate path regarding the source of the capital you will be investing. You must also demonstrate that the funds you are investing have not been obtained through criminal means. Some of the evidence you may submit to demonstrate the source of your capital includes, but is not limited to:
- Wire transfers, money orders, and/or canceled checks;
- Foreign and domestic bank statements;
- Foreign tax returns;
- Pay records;
- Property records; or
- Loan and/or mortgage agreements.
What must I demonstrate my role will be?
You must show that you will develop and direct the investment enterprise by demonstrating ownership of at least 50% of the enterprise, or by possessing operational control through a managerial position or other corporate devices. Some of the evidence you may submit to demonstrate your capacity to develop and direct your business venture includes, but is not limited to:
- A detailed list of all owners and their percentage of ownership. If you are one of two 50% owners, or own less than 50% of the enterprise, the documentation should be signed by all owners to show that you possess a controlling interest;
- Capitalization table;
- Stock purchase agreement, term sheet, letter of intent, or memorandum of understanding;
- Meeting minutes;
- Stock certificates or stock ledger;
- Articles of incorporation/organization;
- Annual report or U.S. Securities and Exchange Commission (SEC) Form 10-K;
- Partnership agreement; or
- Franchise agreement.
You may be eligible for Optional Practical Training (OPT) if you are an F-1 student in the United States and you seek to start a business that is directly related to your major area of study. Students in English language training programs, however, are ineligible for OPT. In addition, you may not qualify for a Science, Technology, Engineering or Mathematics (STEM) OPT extension if the business is not already established and will be your employer.
Can I start and own my own business?
You may start, own, and work for your own business during your initial period of OPT. However, to qualify for a STEM OPT extension, the start-up entity must be an employer in good standing with E-Verify, sign a training plan for you, and have the resources to comply with the proposed training plan. While this may not preclude you from having an ownership interest in the start-up, you may not be your own employer and you may not sign the training plan attestation on your own behalf. DHS has additional information about STEM OPT extensions on DHS Study in the States.
What type of work may I do for the business?
While on F-1 OPT, the work you perform must directly relate to your major area of study.
Can I start and work for a business while I am still in school?
As an F-1 student, you may be authorized up to a total of 12 months of full-time practical training at each educational level (for example, undergraduate, graduate, and post-graduate). If you are authorized to engage in pre-completion OPT, you may not work more than 20 hours per week while school is in session but may work full-time during your annual vacation and other times when the school is not in session. If you engage in pre-completion OPT, your eligible period of post-completion OPT when you graduate will be reduced. If you have already received one year of part-time pre-completion OPT, the total time of full-time OPT still available would be reduced by six months, 50% of the previously authorized year at the same education level. In this scenario, you would only be entitled to a remaining period of six months full-time post-completion OPT. If you have already received one year of full-time pre-completion OPT, the total time of full-time OPT still available would be reduced by one year, 100% of the previously authorized year at the same education level. In this scenario, you would not be entitled to any period of post-completion OPT.
Students who graduate with a qualified STEM degree, and are currently in an approved post-completion OPT period based on a designated STEM degree, may apply for a 24-month STEM extension of their post-completion OPT.
How do I apply for F-1 OPT?
Once you receive a recommendation from your Designated School Official (DSO) to pursue OPT, you must apply for an Employment Authorization Document (EAD) with USCIS. For pre-completion OPT, you may apply up to 90 days before you complete a full academic year, if you do not start OPT until you complete one full academic year. For post-completion OPT, you must apply within 30 days after your DSO enters the recommendation into your SEVIS record. Additionally, you may apply up to 90 days prior to your program end date but no later than 60 days after your program end date.
How do I get a 24-month STEM extension of my post-completion OPT?
If you have completed a qualifying STEM degree, and you are currently in an approved post-completion OPT period based on a designated STEM degree, you may be eligible to apply for a 24-month STEM extension of your post-completion OPT. For a STEM degree to qualify, it must appear on the DHS STEM Designated Degree Program List (January 21, 2022) (PDF). If you want to apply for a STEM extension, you must apply for the extension with USCIS before your current OPT work authorization expires, but no more than 90 days before the expiration of your OPT. Additionally, you must apply within 60 days after your DSO enters the recommendation into your SEVIS record.
You may be eligible for classification as an H-1B nonimmigrant if you are planning to work in the United States in an occupation that normally requires a bachelor’s degree or higher in a related field of study (e.g., engineers, scientists, or mathematicians), and you have at least a bachelor’s degree or equivalent in a field related to the position.
The petitioning employer (the “petitioner”) may be an entity in which you (the “beneficiary”) have an ownership interest.
Below are some key requirements you must fulfill to qualify for classification as an H-1B specialty occupation worker. For each requirement, we have included forms of evidence that you may submit to meet the requirement and other tips to help you prepare your petition.
Requirement 1 – You must have an employer-employee relationship with the petitioning U.S. employer
In general, an H-1B petitioner may establish a valid employer-employee relationship (PDF, 379.71 KB) with respect to an H-1B beneficiary if the petitioner will hire, pay, fire, supervise, or otherwise control the work of the beneficiary. The sole or majority owner of the petitioning company or organization may be able to establish a valid employer-employee relationship if the facts show that the petitioning entity meets at least one of the above-listed factors.
How do I demonstrate an employer-employee relationship if I own my own company?
If you own your company, you may be able to demonstrate that an employer-employee relationship (PDF, 379.71 KB) exists if the entity petitioning for your H-1B classification meets at least one of the “hire, pay, fire, supervise, or otherwise control the work of” factors. H-1B petitioners are required to submit a Labor Condition Application (LCA) and a copy of any written contracts between the petitioner and the beneficiary, or a summary of the terms of the oral agreement if a written contract does not exist. Depending upon the content of such documentation, it may establish the employer-employee relationship.
Requirement 2 – Your job may qualify as a specialty occupation if it meets one of the following criteria:
- A bachelor’s or higher degree or its equivalent is normally the minimum requirement for the particular position;
- The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor's degree in a field related to the position;
- The employer normally requires a degree or its equivalent for the position; or
- The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
Note that “normally,” “common,” and “usually” are interpreted based on their plain language, dictionary definitions. They are not interpreted to mean “always.”
How do I prove that my position within my business is an occupation that normally requires a degree in a related field?
USCIS often refers to the Occupational Outlook Handbook (OOH) from the U.S. Department of Labor (DOL) to help determine whether certain jobs require a degree. If the OOH does not indicate that a degree in a related field is normally the minimum requirement for the position, examples of evidence you may submit to demonstrate that the position normally requires such a degree includes:
- Copies of past position announcements, if relevant, that reflect the minimum requirements for the position and which show that your company normally requires a degree for the position and confirming that your position is so specialized or complex it can only be performed by someone with a degree, including a detailed description of the petitioner’s business/products/services and the duties of the position;
- A detailed description of the petitioner’s business/products/services and the duties of the position, along with written opinions from experts confirming that your position is so specialized or complex it can only be performed by someone with a degree (in a related field);
- Job listings, letters, and/or affidavits from other employers reflecting the minimum requirements for the position and which show that the degree requirement is common to the industry in parallel positions among similar organizations; or
- Written opinions from experts in the field explaining how the degree is related to the role you will perform.
Requirement 3 – Your job must be in a specialty occupation related to your field of study
How do I show that my degree is related to the specialty occupation?
Some of the evidence you may submit to demonstrate that your degree is related to your position includes:
- A detailed explanation of the specific duties of the position, the product or service your company provides, or the complex nature of the role you will perform, and how your degree relates to the role;
- Written opinions from experts in the field explaining how the degree is related to the role you will perform;
- Resources describing the degree fields normally associated with the occupation; or
- Evidence that similar companies in your industry require similar degrees for similar positions.
Can I qualify without a bachelor’s degree?
If your position qualifies and you do not have at least a bachelor’s degree in a field related to your position, then you may qualify by:
- Holding an unrestricted state license, registration, or certification, which authorizes you to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or
- Having education, specialized training, or progressively responsible experience that is equivalent to the completion of a U.S. bachelor’s or higher degree in the specialty occupation and having recognition of expertise in the specialty through progressively responsible positions directly related to the specialty. In general, three years of work experience or training in the field is considered as equivalent to one year of college.
Note: Submit equivalency documents for all foreign degrees. If work experience is taken into account, please submit an equivalency evaluation from a college official. If the equivalency evaluation is not from the registrar, submit a statement from the school’s registrar to establish that the particular evaluating official is authorized to grant college-level credit on behalf of his or her institution.
Requirement 4 – An H-1B visa number must be available at the time of filing the petition, unless the petition is exempt from numerical limits.
The H-1B nonimmigrant classification has an annual numerical limit, or cap, of 65,000 visas or initial status grants each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries who have earned a master’s degree or higher from a U.S. institution of higher education are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization are not subject to this numerical cap.
Cap numbers are often used up very quickly, so it is important to plan ahead if you intend to file an H-1B petition that is subject to the annual H-1B numerical allocations. H-1B cap-subject petitions, including those eligible for the advanced degree exemption, may not be filed unless based on a valid, selected registration for the beneficiary (unless the registration requirement is suspended). Registration typically begins in early March for a start date in the next fiscal year. H-1B petitions can be filed up to six months before the start date.
You may be eligible for an L-1 visa for “intracompany transferees” if you are an executive or manager who has worked abroad for a qualifying organization (including an affiliate, parent, subsidiary or branch of your foreign employer) for at least one year within the three years preceding the filing of your L-1 petition (or in some cases your admission to the United States). To qualify for L-1A classification, the organization must seek to transfer you to the United States to work as an executive or manager.
Your foreign employer may transfer you to a U.S. entity that is already doing business or you may be transferred to start a new office. This section will only address new offices.
A new office is an organization that has been doing business in the United States through a parent, branch, affiliate, or subsidiary for less than one year. Because the term organization in the definition of new office is not separately defined, it can be either a U.S. or foreign corporation or other legal entity. The requisite less than one year limitation applies to the new offices that meet any of the four individual entity types – parent, branch, subsidiary, or affiliate. The regulations define a branch as “an operating division or office of the same organization housed in a different location,” illustrating that the organization is not limited to only one location in the United States. Among the factors to be considered are the amount of investment, intended personnel structure, product or service to be provided, physical premises, and viability of the foreign operation.
For more information about L-1A intracompany transferees and the differences between the requirements for established offices and new offices, see L-1A Intracompany Transferee and the USCIS Policy Manual.
Requirement 1 - The U.S. entity must have a qualifying relationship with your foreign employer.
The U.S. entity must have a corporate relationship with the foreign entity where you have been employed as a manager or executive. This means that the U.S. entity must be a parent, affiliate, subsidiary, or branch of the foreign entity, and that both the U.S. entity and the foreign entity must continue to share common ownership and control. You may still qualify, however, even if the specific foreign entity where you worked abroad for the requisite one year is no longer in operation, provided that there continues to exist at least one other qualifying foreign entity remaining in operation during your entire period of stay in the United States as an L-1A nonimmigrant executive or manager.
How do I demonstrate that the new office in the United States has a qualifying relationship with my foreign employer?
Some of the evidence you may submit to show that the new U.S. business has the requisite qualifying relationship to your foreign employer includes, but is not limited to:
- Articles of incorporation or similar organizational documents showing common ownership of the U.S. and foreign entities;
- Bylaws or similar operating documents evidencing common ownership of the U.S. and foreign entities;
- Organizational charts illustrating the qualifying relationship between the U.S. and foreign entities;
- Business registration records, meeting minutes, ownership certificates, or ownership ledgers demonstrating common ownership and control of the U.S. and foreign entities;
- Bank statements or wire transfer documents demonstrating capital contribution in exchange for ownership;
- Annual reports describing the corporate structure;
- Corporate filings in the United States or abroad describing the corporate relationship; and
- Any other evidence demonstrating ownership and control over the U.S. and foreign entities (that is, stock purchase agreements, voting rights agreements, capitalization tables, term sheets).
1) If the U.S. entity is an affiliate, provide a detailed list of the owners of the foreign and U.S. companies, including the percentage of ownership, along with supporting documentation. An affiliate is defined as one of two subsidiaries owned and controlled by the same parent or individual, or the same group of individuals, each owning and controlling the same share or proportion of each entity.
2) If the U.S. entity is a parent or subsidiary, provide a detailed list of the owners, including the percentage of ownership, along with supporting documentation. A subsidiary is an entity of which a parent:
- Owns, directly or indirectly, more than half the entity and controls the entity;
- Owns, directly or indirectly, half the entity and controls the entity;
- Owns, directly or indirectly, 50% of a 50-50 joint venture and has equal control and veto power over the entity; or
- Owns, directly or indirectly, less than half of the entity, but in fact controls the entity.
3) A branch is an operating division or office of the same organization housed in a different location. Probative evidence that the U.S. employer is a branch office may include but is not limited to one or more of the following:
- A state or territorial business license establishing that the foreign corporation is authorized to engage in business activities in the United States;
- Copies of the U.S. Income Tax Return of a Foreign Corporation (IRS Form 1120-F);
- Copies of the Employer’s Quarterly Federal Tax Return (IRS Form 941) listing the branch office as the employer;
- Copies of the Wage and Tax Statement (IRS Form W-2) listing the branch office as the employer; or
- Copies of a lease for office space in the United States.
If the petitioner seeks to transfer the beneficiary from a foreign branch office, the petition should include comparable evidence to establish that the foreign employer is a branch office of a qualifying entity.
How do I demonstrate that I have worked the required amount of time abroad?
Some of the evidence you may submit to document your foreign employment for one out of the last three years includes, but is not limited to:
- Pay stubs;
- Payroll records; and
- Tax returns that show employment.
How do I show that my foreign employment was in a qualifying capacity?
Some of the evidence you may submit to demonstrate that your foreign employment was in a managerial or executive capacity includes:
- Organizational charts showing your position and any employees that support your position;
- Performance appraisals or reviews; and
- Job descriptions for your position and those positions that report above and/or below you, if applicable.
Requirement 2 - Sufficient physical space must be secured for a new office.
While the amount of physical space may vary depending on the nature of the business, an appropriate physical space to conduct the proposed business must be secured through lease, purchase, or other means.
How do I prove that the new U.S. office has sufficient space to do business?
When filing for the purpose of opening a new office in the United States, some of the evidence you may submit to demonstrate sufficient physical space for the new U.S. office to do business includes, but is not limited to:
- Signed lease agreement;
- Mortgages or other proof of real estate purchase; and
- Business plan, marketing materials, or other descriptions of the business connecting the activity of the business with the space acquired.
1) If you are filing for a new office, provide a copy of a business plan or executive summary that shows the size of the U.S. investment and your ability to commence doing business in the United States.
2) In addition to evidence showing you have secured a physical premise, explain how this location is sufficient for your business.
Requirement 3 - A new office must be active and operating within one year after your admission as an L-1 to the United States in order to extend your stay.
The “new office” L-1 visa is meant to facilitate a “ramp up” period for a new U.S. office of a foreign entity. This period is limited to one year. After that time, an extension of the L-1 visa is available if the new office meets this requirement of being active and operating. What makes an office active and operating will differ depending on the nature of the business. Typically, it will involve factors such as, but not limited to, hiring additional employees, fulfillment of contract orders, having a revenue stream, or holding inventory, if applicable.
Requirement 4 - After one year, the new office must support a managerial or executive position if you are requesting an extension of stay in the L-1A classification.
During the first-year ramp up, a manager or executive may be required, as a practical matter, to engage in many “hands-on” tasks that go beyond inherently managerial or executive tasks. After the first year, however, you will be required to focus primarily on managerial or executive tasks and demonstrate that the business now supports a managerial or executive position in order to obtain an extension of the L-1 visa.
After one year, how do I demonstrate that the new office is fully functioning and that it will support my role as a manager or executive?
Some of the evidence you may submit to demonstrate that the new office is fully functioning includes, but is not limited to:
- Purchase orders, contracts or other evidence of commercial activity;
- Organizational charts identifying your position and current employees supporting your position;
- Quarterly wage reports showing current staff and employees hired;
- Bank statements;
- Financial reporting documents showing monthly income; and
- Position descriptions providing the roles and responsibilities of all current employees, or other evidence which clearly demonstrates how your managerial or executive position is relieved of primarily performing non-qualifying duties.
You may be eligible for classification as an O-1A nonimmigrant if you have extraordinary ability in the sciences, education, business, or athletics, which can be demonstrated by sustained national or international acclaim and recognition, and you will be coming to the United States to work in your field of expertise, which may include working for a business that you own. Extraordinary ability means you have a level of expertise indicating you are one of the small percentage of people who have risen to the very top of your field.
Requirement 1 – A U.S. employer or U.S. agent must file the petition.
USCIS regulations provide that the petitioner may be either a U.S. employer or U.S. agent (who may be the actual employer of the beneficiary, the representative of both the employer and the beneficiary; or a person or entity authorized by the employer to act for, or in place of, the employer as its agent). While O-1 beneficiaries may not self-petition, a separate legal entity you own (such as a corporation or limited liability company) may file a petition on your behalf.
Requirement 2 - You must be able to establish that you have extraordinary ability in your field.
The O-1A classification, for those in the sciences, business, education, or athletics, is for people who are among a small percentage at the very top of their field and who are coming to the United States to continue work in that field of expertise.
To establish eligibility for classification as an O-1A nonimmigrant, you must provide initial evidence that you either have received a major, internationally recognized award, or submit initial evidence that satisfies at least three of the eight evidentiary criteria.
The USCIS Policy Manual includes detailed guidance regarding how O-1A eligibility is evaluated, including a chart (reproduced below) that describes relevant examples of evidence that may satisfy each of the alternate O-1A evidentiary requirements, as well as considerations that are relevant to evaluating such evidence.
|O-1A Evidentiary Criterion:||Relevant Examples and Considerations|
|Documentation of the beneficiary’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor.||
While many scholastic awards do not have the requisite level of recognition, there are some Ph.D. scholarships or dissertation awards, for example, that are nationally or internationally recognized as awards for excellence such that they may satisfy the requirements of this criterion. Relevant considerations include, but are not limited to:
For example, an award available only to persons within a single locality, employer, or school may have little national or international recognition, while an award open to members of a well-known national institution (including an R1 or R2 doctoral university) or professional organization may be nationally recognized.
|Documentation of the beneficiary’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields.||
The petitioner must show that membership in the association requires outstanding achievements in the field for which classification is sought, as judged by recognized national or international experts.
Associations may have multiple levels of membership. The petitioner must show that to obtain the level of membership afforded to the beneficiary, the beneficiary was judged by recognized national or international experts as having attained outstanding achievements in the field for which classification is sought.
As a possible example, membership in the Institute of Electrical and Electronics Engineers (IEEE) at the IEEE fellow level requires, in part, that a nominee have “accomplishments that have contributed importantly to the advancement or application of engineering, science and technology, bringing the realization of significant value to society,” and nominations are judged by an IEEE council of experts and a committee of current IEEE fellows. As another possible example, membership as a fellow in the Association for the Advancement of Artificial Intelligence (AAAI) is based on recognition of a nominee’s “significant, sustained contributions” to the field of artificial intelligence, and is judged by a panel of current AAAI fellows.
Relevant factors that may lead an officer to a conclusion that the person's membership in one or more associations was not based on outstanding achievements in the field include, but are not limited to, instances where the person's membership was based:
|Published material in professional or major trade publications or major media about the beneficiary, relating to the beneficiary's work in the field for which classification is sought. This evidence must include the title, date, and author of such published material and any necessary translation.||
Published material that includes only a brief citation or passing reference to the beneficiary’s work is not “about” the beneficiary, relating to the beneficiary’s work in the field, as required under this criterion. However, the beneficiary and the beneficiary’s work need not be the only subject of the material; published material that covers a broader topic but includes a substantial discussion of the beneficiary’s work in the field and mentions the beneficiary in connection to the work may be considered material “about” the beneficiary relating to their work.
Moreover, officers may consider material that focuses solely or primarily on work or research being undertaken by a team of which the beneficiary is a member, provided that the material mentions the beneficiary in connection with the work, or other evidence in the record documents the beneficiary’s significant role in the work or research.
In evaluating whether a submitted publication is a professional publication, major trade publication, or major media, relevant factors include the intended audience (for professional and major trade publications) and the relative circulation, readership, or viewership (for major trade publications and other major media).
|Evidence of the beneficiary's participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization for which classification is sought.||
The petitioner must show that the beneficiary has not only been invited to judge the work of others, but also that the beneficiary actually participated in the judging of the work of others in the same or allied field of specialization.
For example, a petitioner might document a beneficiary’s peer review work by submitting a copy of a request from a journal to the beneficiary to do the review, accompanied by evidence confirming that the beneficiary completed the review.
|Evidence of the beneficiary's original scientific, scholarly, or business-related contributions of major significance in the field.||
Analysis under this criterion focuses on whether the beneficiary’s original work constitutes major, significant contributions to the field.
Evidence that the beneficiary’s work was funded, patented, or published, while potentially demonstrating the work’s originality, will not necessarily establish, on its own, that the work is of major significance to the field. However, published research that has provoked widespread commentary on its importance from others working in the field, and documentation that it has been highly cited relative to other works in that field, may be probative of the significance of the beneficiary’s contributions to the field of endeavor.
Similarly, evidence that the beneficiary developed a patented technology that has attracted significant attention or commercialization may establish the significance of the beneficiary’s original contribution to the field. If a patent remains pending, USCIS will likely require additional supporting evidence to document the originality of the beneficiary’s contribution.
Detailed letters from experts in the field explaining the nature and significance of the beneficiary’s contribution(s) may also provide valuable context for evaluating the claimed original contributions of major significance, particularly when the record includes documentation corroborating the claimed significance.
Submitted letters should specifically describe the beneficiary’s contribution and its significance to the field and should also set forth the basis of the writer’s knowledge and expertise.
|Evidence of the beneficiary's authorship of scholarly articles in the field, in professional journals, or other major media.||
To meet this criterion, the beneficiary must be a listed author of the submitted article(s) but need not be the sole or first author. In addition, a petitioner need not provide evidence that the beneficiary’s published work has been cited to meet this criterion.
In addition, the articles must be scholarly. In the academic arena, a scholarly article reports on original research, experimentation, or philosophical discourse. It is written by a researcher or expert in the field who is often affiliated with a college, university, or research institution and the article is normally peer-reviewed.
In general, it should have footnotes, endnotes, or a bibliography, and may include graphs, charts, videos, or pictures as illustrations of the concepts expressed in the article. In non-academic arenas, a scholarly article should be written for learned persons in that field.
In evaluating whether a submitted publication is a professional publication, major trade publication, or major media, relevant factors include the intended audience (for professional and major trade publications) and the circulation, readership, or viewership relative to other media in the field (for major trade publications and other major media).
|Evidence that the beneficiary has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation.||
To show a critical role, the evidence should establish that the beneficiary has contributed in a way that is significant to the organization or establishment’s activities. To show an essential role, the evidence should establish that the beneficiary’s role is (or was) integral to the entity. A leadership role in an organization often qualifies as critical or essential.
For a supporting role to be considered critical or essential, USCIS considers other factors, such as whether the beneficiary’s performance in the role is (or was) integral or important to the organization or establishment’s goals or activities, especially in relation to others in similar positions within the organization.
It is not the title of the beneficiary’s role, but rather the beneficiary’s duties and performance in the role that determines whether the role is (or was) critical or essential. Detailed letters from persons with personal knowledge of the significance of the beneficiary’s role can be particularly helpful in analyzing this criterion. The organization need not have directly employed the beneficiary.
In addition, the organization or establishment must be recognized as having a distinguished reputation. Relevant factors for evaluating the reputation of an organization or establishment can include the scale of its customer base, longevity, or relevant media coverage.
For academic departments, programs, and institutions, officers may also consider national rankings and receipt of government research grants as positive factors in some cases.
For a start-up business, officers may consider evidence that the business has received significant funding from government entities, venture capital funds, angel investors, or other such funders commensurate with funding rounds generally achieved for that start-up’s stage and industry, as a positive factor regarding its distinguished reputation.
|Evidence that the beneficiary has either commanded a high salary or will command a high salary or other remuneration for services as evidenced by contracts or other reliable evidence.||
If the petitioner is claiming to meet this criterion, then the burden is on the petitioner to provide appropriate evidence establishing that the beneficiary’s compensation is high relative to others working in similar occupations in the field. The following webpages, among others, may be helpful in evaluating the relative compensation for a given field:
Officers should evaluate persons working outside of the United States based on the wage statistics or comparable evidence for that locality, rather than by simply converting the salary to U.S. dollars and then viewing whether that salary would be considered high in the United States.
For entrepreneurs or founders of start-up businesses, officers consider evidence that the business has received significant funding from government entities, venture capital funds, angel investors, or other such funders in evaluating the credibility of submitted contracts, job offer letters, or other evidence of prospective salary or remuneration for services.
Note: If any of the criteria discussed in the Appendix chart do not readily apply to your occupation, the petitioner may submit comparable evidence to establish your eligibility. When the required initial evidence has been provided, USCIS will evaluate the totality of the evidence to determine eligibility.
The Policy Manual also includes guidance regarding the use of comparable evidence to establish eligibility, as well as the guidance regarding how USCIS evaluates the totality of the evidence for O-1A petitions.
Requirement 3 – You must show that you will continue to work in your area of expertise.
You are required to provide copies of any written contracts between you and the petitioner/start-up entity. If there is no written contract, you may provide a summary of the terms of the oral agreement under which you will be employed. In addition, you must provide an explanation of the nature of the events or activities, which may include your employment, in the United States.
Requirement 4 – You must obtain an advisory opinion from an appropriate peer group.
The advisory opinion must be written by an individual or group with expertise in your field regarding the nature of your work and your qualifications. The consultation should describe your ability and achievements in your field.