Ask Sophie: Can I get an O-1A visa to bypass the H-1B process?

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.