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O-1 for Founders: Common Blockers

Legalpad understands the common blockers founders face during the O-1 process, and we are here to offer you solutions.

Your company is not incorporated in the U.S.

Why this is a blocker: The company sponsoring your O-1 must be able to do business in the U.S.

Solution: Your company will need to be incorporated in the U.S. and provide evidence of incorporation (ex: articles of incorporation). We cannot file the O-1 until your company is incorporated. If you need a referral for a business attorney to help with the incorporation, we can connect you with Attorney Leslee Cohen (https://hershco.com/cohen/) or our contacts at Stripe: https://dashboard.stripe.com/atlas/invite/prod-legalpad-D8e34i

 

Your company does not have a business license to do business in a U.S. state that requires a business license (ex: California)

Why this is a blocker: The company sponsoring your O-1 must be able to do business in the U.S.

Solution: Your company will need to be incorporated in the U.S. and provide evidence of incorporation (ex: articles of incorporation). We cannot file the O-1 until your company is incorporated.

Your company does not have a Federal Employer Identification Number (FEIN)

Why this is a blocker: The existence of the FEIN is evidence of the sponsoring company’s ability to do business in the U.S

Solution:Best practice would be to wait until your company has a FEIN to file the O-1 petition. If you do not want to wait, we can file the O-1 with evidence that your company has applied for a FEIN and that the request is pending. However, USCIS may issue a  Request for Evidence (RFE) to inquire about the FEIN.

Your company does not yet have someone who can sign as the company representative.

Why this is a blocker: You will need someone to sign the O-1 paperwork as the company representative, and you cannot be the signatory.

Solution: Most founders choose to use a co-founder as the company representative for the O-1 paperwork. However, if you are a sole founder, the O-1 filing can be signed by someone on your Board with the authority to sign paperwork on behalf of the company.

You own 50% or more equity in the company.

Why this is a blocker: If you have 50% or more equity in your company, this may raise questions regarding the employer-employee relationship.

Solution: If you own 50% or more equity, the company will need to create a Board of Directors with 2 Board Members (other than yourself), that has the power to either “hire, pay, fire, supervise, or otherwise control your work.”  Best practice would be for you to work with your business attorney and create the Board before the O-1 is filed.

Your company does not yet have a mailing address.

Why this is a blocker: The company mailing address is asked on Form I-129, which is part of the O-1 filing. Also, the existence of a mailing address for the company adds  legitimacy that the company is doing business in the U.S.

Solution: If your company does not yet have a U.S. mailing address, we can list either:

a. Virtual office/co-working space where mail can be received
b. If temporarily working at an accelerator in the U.S., mailing address for accelerator if mail can be received there
c. U.S. home address where mail can be received

You do not yet have a U.S. worksite

Why this is a blocker: The location where you will be working in the U.S. is required in the O-1 filing. The government wants to know where you will be working.

Solution: If you do not yet have a U.S. worksite for your company, we can use either:

a. Address of U.S. co-working space where you will work from
b. If temporarily working at an accelerator in the U.S., the address of
the accelerator where you will work from
c. U.S.home address where you will work from
d. If no company office location and no co-working space/U.S.home address/address for accelerator where work will be performed:
1. You should secure a coworking membership. No physical workplace increases the risk of an Request for Evidence (RFE).
2. If you are unable to get a coworking membership, we can list the virtual office address, but we will include an addendum in the O-1 filing.

Addendum: Beneficiary will be working in the U.S. in [insert city, insert state], and has secured a temporary virtual office to be used as the company’s initial business premises. The company will secure a permanent office space in [insert city, insert state] once Beneficiary is in the U.S. The company is incorporated in [location] and is engaged in business.

Virtual office: the address where the company can receive mail, but not an actual physical work site.

Co-working space: physical location for shared office space.

Your company does not yet have a formal valuation

Why this is a blocker: Having a valuation for your company will help strengthen the O-1. If you have equity in your company, a total valuation of the company can support the high remuneration argument for O-1 eligibility.

Solution: We recommend obtaining a valuation of your company. Carta provides this service: https://carta.com/

You have an upcoming event (ex: upcoming funding round, press campaign, book publication, patent filing, etc.) that you think will strengthen the O-1.

Why this is a blocker: Should we hold off filing the O-1? Additional documentation about your extraordinary ability and how you meet the eligible criteria could strengthen the O-1.

Solution: Please share with us details about the upcoming event. Our attorney can then evaluate whether the O-1 petition would be strong enough to file without the additional documentation/information, or whether we should wait for the additional achievements before filing the O-1.

Factors to consider would be:

  • Existing strength of your current credentials
  • Whether you have a timing issue and do not have the flexibility to wait. For example, you need to promptly file the O-1 “change of status” because your current status is expiring soon.
  • The strength of the new information/documentation. For example, would this be a major accomplishment that is very impressive (such as a funding round projected to result in $1 million in funding), or is this a minor accomplishment that will likely not sway the O-1 result?