Cyrus D. Mehta, Kaitlyn Box, Jan. 14, 2025
“On January 8, 2025, USCIS issued up to date guidance in its Coverage Handbook clarifying how entrepreneurs might qualify for O visas. The steering states that:
“O beneficiaries might not petition for themselves. Nonetheless, a separate authorized entity owned by the beneficiary, similar to an organization or restricted legal responsibility firm, might file the petition on their behalf.”
USCIS’ steering on this level was extra ambiguous beforehand, which created issues that an O petition filed by way of a beneficiary’s personal firm could be considered as tantamount to self-employment. This up to date steering will afford a transparent pathway for entrepreneurs to acquire O-1 visas by way of their very own corporations. Apparently, the brand new steering seems to use to all O beneficiaries and never merely those that qualify for O-1 classification. This steering additionally doesn’t require such startups to fulfill circumstances similar to their skill to manage the O-1’s employment by requiring a majority shareholder or a board of administrators. USCIS appears to have relied on previous administrative choices that recognize the separate existence of the corporate entity as separate and distinct authorized entity from its house owners and stockholders. See Matter of M, 8 I&N Dec. 24, 50 (BIA 1958, AG 1958); Matter of Aphrodite Investments Restricted, 17 I&N Dec. 530 (Comm.1980); and Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc. Comm. 1980).
USCIS’ up to date O-1 steering is according to a provision within the Division of Homeland Safety (DHS)’s H-1B modernization final rule (see our commentary), set to take impact on January 17, 2025. Within the ultimate rule, DHS clarified that beneficiaries with a controlling possession curiosity within the petitioning entity should be eligible for H-1B standing topic to “cheap circumstances”. In a previous blog, we explored the circumstances underneath which an entrepreneur may qualify for H-1B classification. Even underneath the prevailing laws, it was potential for a startup founder or entrepreneur to qualify for H-1B classification if the petitioning firm may set up a legitimate employer-employee relationship underneath at the very least one of many “rent, pay, fireplace, supervise, or in any other case management the work of” elements, and the job qualifies as a specialty occupation underneath one of many 4 standards underneath 8 C.F.R. § 214.2(h)(4)(iii)(A). An entrepreneur who was capable of meet these necessities by way of his or her personal firm would have been eligible for H-1B classification for an preliminary 3 yr interval, in addition to a subsequent 3-year extension. Though the ultimate rule extra clearly states {that a} beneficiary with a controlling curiosity within the petitioning group might nonetheless be eligible for H-1B classification, it limits the validity of the preliminary H-1B petition and first extension to 18 months every.
It’s certainly salutary that the USCIS is considering of encouraging entrepreneurs to acquire visas by way of their startups. Whereas it could be best if Congress enacted a startup visa, it’s at the very least a great begin for USCIS to create pathways inside the current nonimmigrant visa system for entrepreneurs. It’s hoped that the brand new Trump administration continues down the identical pathway. Entrepreneurs ought to be inspired to come back to the US to determine startups that will succeed, and create extra jobs and new enterprise fashions that break the paradigm, which in flip will lead to financial progress and create much more jobs. There are lots of Trump advisors, as properly some on the left like Bernie Sanders, who view nonimmigrants on work visas as a threat to US workers and need to curb lawful nonimmigrant pathways to america. They’re misguided, and it’s hoped that they notice the advantages that noncitizen entrepreneurs convey to the US and mustn’t kill the goose that lays the golden eggs!”