Your Own Company Can File Your O-1. That Is Not the Same as Petitioning for Yourself.

Short answer. Yes. An O-1 beneficiary cannot self-petition, but a separate legal entity that the beneficiary owns can file the petition on his behalf. Both the State Department and USCIS say so. What makes it work is governance: someone other than you has to hold real authority over your employment. No authority sets an ownership percentage.

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.

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