The rule, and the sentence people miss

9 FAM 402.13 says an O-1 beneficiary may not self-petition, and then says in the same breath that a separate legal entity owned by the O-1 beneficiary may be eligible to file a petition on behalf of the beneficiary.

USCIS said the same thing in Policy Alert PA-2025-02, issued January 8, 2025, which updated Volume 2, Part M of the Policy Manual to explain that “a separate legal entity owned by the beneficiary, such as a corporation or limited liability company, may file a petition on the beneficiary’s behalf.”

So a founder is not locked out. A founder is required to build something.

What the petitioning entity has to look like

The entity must be genuinely separate from you, with someone other than you holding real authority over the employment relationship: a board, officers, or investors who can hire, fire, and set terms. You cannot be the sole decision-maker over your own employment and still describe the company as your employer.

One caution. I am not aware of any authority setting a specific ownership percentage for this purpose, and anyone quoting you a number is telling you something the law does not say. What the law imposes is a requirement about control.

If your evidence file predates 2025, rebuild it

The January 8, 2025 update added evidence types for beneficiaries working in critical and emerging technologies, examples of evidence an interested U.S. government agency might submit, and an example of what counts as an occupational change within a technical field. A file assembled before that update was built against a narrower set of examples than USCIS now publishes. If yours is older, it is worth revisiting before you refile.

Two mechanics that trip up founders

Agent as petitioner. Available for beneficiaries who are traditionally self-employed or who work short engagements for numerous employers, and an agent may file one petition covering multiple employers where each authorizes it. A real option for consultants and creatives. A poor fit for someone running one operating company.

The consultation. A written advisory opinion from an appropriate peer group, labor organization, or management organization. It is advisory, not binding on USCIS, and it may be obtained by the agency or waived where no appropriate peer group exists. Founders in emerging fields often assume that no peer group means no petition. It does not.

Where this collides with E-2, and how to fix it

E-2 and O-1 pull in opposite directions on the same document.

Those are not irreconcilable, and the reconciliation is a governance problem, not an ownership problem. Treaty nationals can keep fifty percent or more of the equity, so long as the governing documents put authority over your employment somewhere else. Hiring, firing, compensation, terms: a board or an officer other than you has to hold those powers, and has to actually use them. What breaks is the arrangement that exists only on paper.

I had a founder bring me a beautifully drafted operating agreement last spring. Treaty nationality was clean at sixty percent. The agreement also made him sole manager with exclusive authority over all employment matters, including his own. The E-2 was fine. The O-1 petition from his own company was not, and fixing it meant amending the agreement, documenting a board, and waiting for the amendment to be more than three weeks old. That is a cheap problem before signature and an expensive one after.

Immigration is federal, but the entity, its governing documents, and the authority you vest in a board or officer are governed by the law of the state where the company is organized. This firm is licensed in Texas and Illinois. Elsewhere we work alongside local corporate counsel.

Decide which visa the entity is being built for before you sign the operating agreement, or build it deliberately for both. Call or text 512.761.8479.

Read next: Where the $100,000 H-1B Payment Stands · E-2 Visa Requirements

Either you are trying to hire someone and the H-1B math keeps moving, or you are the someone and you want a category that does not depend on a lottery. Both lead to the same place.

Eleven months, four reversals

The proclamation restricts entry of H-1B beneficiaries who are outside the United States unless the petition is accompanied by a $100,000 payment. It is not a filing fee on every H-1B. Petitions filed before the effective date, and approved amendments, extensions, and changes of status for people already here, fall outside it.

A client of mine has now withdrawn the same job offer twice and re-extended it twice, tracking the litigation each time. In August he asked me whether to pull it again. That is the wrong question, and I told him so. The right question is what he does if the answer changes for a fifth time while his candidate is mid-relocation.

The August 20 development is why. A proposed DHS rule on H-1B fees clearing White House review reads most naturally as an attempt to accomplish through notice-and-comment rulemaking what the district court held could not be done by proclamation. Clearing review is not a rule, and a proposed rule is not a final one. It is still a signal, and it is why this post has a watch date.

Why O-1 comes up

No annual cap. No lottery. No prevailing wage obligation. No labor condition application. For a company that needs a specific person on a specific date, those four facts are the entire argument.

Three things O-1 is not

It has no portability. H-1B has a statutory portability provision at INA § 214(n), 8 U.S.C. § 1184(n), that lets a worker begin with a new employer when a non-frivolous petition is filed, provided he was lawfully admitted, the petition is filed before the current authorized stay expires, and there has been no unauthorized employment. O-1 has no equivalent. A new employer files its own petition, and the beneficiary generally cannot begin work until it is approved. The 240-day rule for timely-filed extensions applies only to the same petitioner. This is how an O-1 professional ends up working without authorization by accident, and it happens to people who have spent a decade in H-1B practice and assume the rules travel.

Its extensions are short. Initial validity runs up to three years for the period needed to accomplish the event or activity, with ten days on either end. Extensions come in increments of up to one year to continue or complete that same event or activity, with no cap on the number. A genuinely new event or activity with the same employer can support a fresh multi-year approval instead of a one-year extension, which is worth structuring for on purpose.

It is not a preview of EB-1A. Published approval rates for O-1 have been high across recent fiscal years while the rate at which requests for evidence issue has climbed. Those are statistics about a population, not predictions about a case. And the standards for EB-1A differ. Published analysis of USCIS data shows EB-1A denial rates roughly doubling between the first quarter of fiscal 2025 and the first quarter of fiscal 2026. Plan the immigrant petition on its own evidence.

If you were counting on H-1B and are now looking at alternatives , the answer depends on your nationality, your company’s ownership, and your timeline. O-1, E-2, and L-1 each fit a different fact pattern. Call or text 512.761.8479.

Read next: Your Own Company Can File Your O-1 · E-2 Visa Requirements

Every week someone tells me, “My visa is valid until 2028, so I’m fine.” Maybe, but the visa stamp only governs entry at the border. Once you are inside the United States, the date that usually controls is the “admit until” date on your I-94 record, together with whether any new petition actually requested an extension or change of status and whether it was filed before your prior status lapsed.

If a petition was filed on time with the right request, you are generally allowed to remain while it is decided. If not, you may be accruing unlawful presence, which carries serious consequences for future visas and reentry. Pull your actual I-94 and receipt notices and confirm the details before you travel or change jobs; do not rely on the stamp.

One more distinction people miss: permission to remain and permission to work are separate questions. A timely-filed extension of the same status with the same employer generally authorizes continued employment for up to 240 days while the petition is pending. Other kinds of filings may let you remain lawfully while they are decided but do not authorize work in the meantime. Confirm which rule applies to your filing before you keep working, not after, because unauthorized employment creates its own problems that outlast the petition.

The same discipline applies to work permits. In many categories, a timely-filed EAD renewal comes with an automatic extension of work authorization, but the rules on who qualifies and for how long have been changing, and the extension cannot be taken for granted. A lapse can mean an unlawful gap in employment. Confirm your category before assuming you are covered; I can check where a renewal stands and what your employer needs to see.

Before you travel, change jobs, or keep working past a deadline, pull the actual documents and confirm. Call or text 512.761.8479.

H-1B status is tied to a place. In the remote-work era, I regularly meet workers who moved to a new metropolitan area, sometimes a new state, without an amendment ever being filed. Their paystubs still show the original worksite. Nothing bad has happened yet. That is exactly what makes it dangerous.

I call this geographic drift, and it has become one of the most common traps in employment-based immigration. Here is how it works, why it surfaces at the worst possible moments, and what to do if it describes you.

Why H-1B status is tied to a worksite

An H-1B petition rests on a Labor Condition Application, and the LCA is location-specific: the required wage is set by the prevailing wage for the occupation in a particular metropolitan area, and the employer’s attestations run to that worksite. The petition USCIS approved describes a specific job performed at a specific place for a specific wage. Change the place, and the wage floor and attestations underneath the approval may no longer match reality.

What kind of move causes the problem

As a general matter, a move to a worksite outside the metropolitan area covered by the certified LCA requires a new LCA and an amended petition before the move, not after. Moves within the same metropolitan area, and certain short-term placements, are treated differently and may not require an amendment, though other obligations such as posting can still apply. The lines here are technical, and “my manager said remote is fine” is an HR answer, not an immigration answer. Whether your move crossed the line is a legal question about the LCA, not a question about company policy.

When drift surfaces

Drift rarely causes trouble the day you move. It surfaces later, when the government compares where you were approved to work against where you actually worked: at an extension, at a transfer to a new employer, or, most painfully, at the green card stage, when years of paystubs, tax records, and addresses are laid side by side with the approved petition. Depending on the facts, the mismatch can draw a request for evidence, complicate the pending filing, or raise status questions that reach backward in time.

What to do if this describes you

First, do not panic, and do not quietly hope it goes unnoticed; the records exist either way. Get the facts reviewed now, while options are open: the fix depends on how far you moved, when, what was filed, and what is coming next in your case. Second, preserve everything: paystubs, approval notices, LCA postings, W-2s, and correspondence. In these cases, the paper trail is the case. And if you are considering changing employers, remember that H-1B portability generally lets you begin work for the new employer once USCIS receives a non-frivolous petition filed on your behalf, provided you were maintaining valid status, which is precisely what drift can put in question.

If your work location has drifted from what USCIS approved, or you are not sure, have it reviewed on your timeline, not the government’s. Call or text 512.761.8479.