How Do Founders Establish an Employer-Employee Relationship?
The employer-employee relationship is the central challenge for founder O-1 petitions. USCIS applies a multi-factor test examining whether the petitioning company has the right to control the beneficiary's work, including how, when, and where work is performed.
For founders, especially those with majority ownership, this control question is complicated. If the founder controls the company entirely, USCIS may conclude that no genuine employer-employee relationship exists—the founder is essentially self-employed using a corporate form.
According to USCIS policy guidance, the analysis considers factors including whether the company can hire and fire the worker, whether the company provides tools and sets work location, and whether the company controls the manner of work performance. Founders must demonstrate that corporate governance structures provide this control.
What Corporate Structures Support Founder O-1 Petitions?
Board of directors oversight is essential. Even if the founder holds a board seat, having independent board members who participate in governance decisions demonstrates that the company—not just the founder—controls employment matters.
Document employment through formal agreements. An employment contract between the company and the founder, approved by the board, establishes terms that the company can enforce. This contract should cover duties, compensation, termination provisions, and reporting relationships.
Avoid structures where the founder has unilateral control over all corporate decisions including their own employment. The more the corporate structure resembles a traditional company with checks and balances, the stronger the employer-employee relationship argument.
What Job Titles Work Best for Founder O-1 Petitions?
Officer titles that accurately describe the founder's role work best. CEO, Chief Executive Officer, President, Chief Technology Officer, and similar titles are appropriate when they reflect actual responsibilities.
Avoid inflated titles that do not match the company's stage or the founder's actual duties. A two-person startup with a "Chief Innovation Officer" title may raise credibility questions. Titles should be proportionate to the company's size and structure.
The title should connect to the extraordinary ability being claimed. A founder with extraordinary ability in software engineering might appropriately hold a CTO title. A founder with extraordinary ability in business strategy might hold a CEO title. The connection between expertise and role strengthens the petition.
Should Titles Emphasize Technical or Business Functions?
Choose titles that align with your O-1 qualification basis. If your extraordinary ability evidence focuses on technical achievements—patents, technical publications, engineering awards—a technical title like CTO makes sense.
If your evidence emphasizes business achievements—successful company building, industry recognition for leadership, business publications—CEO or President titles fit better.
The key is consistency between your extraordinary ability evidence and your proposed role. USCIS should see a logical connection between what makes you extraordinary and what you will do for the company.
How Should Founder Compensation Be Structured?
Compensation must exist and be documented, but early-stage startups have significant flexibility on amounts. USCIS understands that founders often take below-market salaries while building their companies.
Document whatever compensation structure you use. If the founder receives a modest salary, provide the employment agreement showing the amount. If compensation is primarily equity, document the equity grant and explain the compensation structure.
According to Department of Labor guidance and general employment principles, the existence of compensation supports the employer-employee relationship. No compensation at all weakens the relationship argument.
What If the Founder Takes No Salary Initially?
Taking no salary is risky for O-1 purposes. Without compensation, the employer-employee relationship looks weaker because a key element of employment is missing.
If cash compensation is impossible, consider whether equity compensation can be documented as part of the employment arrangement. Stock grants, options, or other equity forms provide value that can be characterized as compensation.
Some founders establish nominal salaries—even very low amounts—to create documented compensation. This approach demonstrates an employment relationship even when the startup cannot afford market-rate pay.
How Does Ownership Percentage Affect the Petition?
Majority ownership increases USCIS scrutiny but does not automatically disqualify founder petitions. The concern is whether someone who owns and controls the company can genuinely be an employee of that company.
Founders with less than majority ownership face less scrutiny because other shareholders have meaningful control. The more distributed the ownership, the more the company looks like an independent entity that employs the founder.
USCIS adjudicator guidance indicates that ownership alone is not determinative. The totality of circumstances—corporate governance, board composition, employment documentation, and operational control—matters more than ownership percentage alone.
Can Sole Founders Obtain O-1 Visas?
Sole founders face the highest burden because ownership and control are entirely concentrated. However, approval is possible with proper structuring.
Establish a board of directors with independent members who have genuine authority over employment matters. Document that the board—not just the founder—makes decisions about the founder's employment terms, compensation, and continued employment.
Consider adding co-founders, advisors with board seats, or investors who bring governance oversight. These additions strengthen the employer-employee relationship by demonstrating that the founder does not have unilateral control.
What Evidence Strengthens Founder O-1 Petitions?
Beyond the employer-employee relationship, founder petitions need strong extraordinary ability evidence. This evidence should demonstrate sustained national or international recognition in your field.
For startup founders, relevant evidence often includes successful prior ventures, industry awards or recognition, significant media coverage, published articles or speaking engagements, patents or technical innovations, and substantial funding or valuations achieved.
The O-1 evidentiary criteria require meeting at least three categories. Founders typically demonstrate judging work of others, original contributions, high salary or remuneration, and authorship of scholarly articles.
How Do You Document Startup Success as Extraordinary Ability?
Frame your startup achievements within the O-1 criteria. Building a successful company can demonstrate original contributions of major significance to your field. Leading a company that attracted major investment can demonstrate high remuneration through equity value.
Media coverage of your startup and your role demonstrates recognition. Speaking invitations at industry conferences show that peers value your expertise. Advisory or board positions with other companies demonstrate that you judge others' work.
Compile this evidence systematically. Each piece should connect to specific O-1 criteria, showing that your startup success reflects extraordinary ability rather than ordinary entrepreneurship.
