The U.S. remains the global epicenter for AI innovation—and over 60% of leading U.S.-based companies on the 2025 Forbes AI 50 list have at least one immigrant founder or co-founder. Yet despite this proven track record, the United States lacks a dedicated startup visa, forcing entrepreneurs into categories designed for traditional employment. The good news: January 2025 USCIS policy updates now confirm that separate legal entities owned by a beneficiary may petition for O-1A visas on behalf of their owners, opening clearer pathways than ever before. With personalized immigration support from experienced attorneys, AI founders can identify the right visa strategy and build their American Dream with confidence.
AI entrepreneurs face a unique immigration challenge: most visa categories require a traditional employer-employee relationship that does not naturally fit founder-owned companies. This structural mismatch has historically pushed founders toward creative workarounds or forced them to abandon U.S. ventures entirely.
The stakes are significant. Nearly 64% of American unicorn startups valued at over $1 billion were founded by immigrants or their children, according to a 2022 NFAP analysis. Among top AI companies specifically, over 70% of immigrant founders initially came to the U.S. on student visas before transitioning to work authorization, per a 2020 CSET study of the Forbes AI 50.
For AI founders, viable pathways generally fall into two categories.
Non-Immigrant (Temporary) Options include the O-1A for extraordinary ability in sciences or business, the E-2 for treaty investors from qualifying countries, the L-1A for multinational executives transferring to U.S. operations, and the H-1B for specialty occupation workers (with significant limitations for founders).
Immigrant (Permanent) Options include the EB-1A for extraordinary ability green cards, the EB-2 NIW for national interest waiver self-petitions, and the EB-1C for multinational executives.
The right choice depends on factors such as nationality, funding stage, evidence of achievements, and timeline requirements. Alma's startup immigration platform offers streamlined legal support with transparent pricing to help founders evaluate these options.
The O-1A visa has emerged as the preferred pathway for AI founders following significant policy clarifications. A January 2025 USCIS update (Policy Alert dated January 8, 2025, updating Volume 2, Part M of the Policy Manual) confirmed that a separate legal entity owned by the beneficiary—such as a corporation or limited liability company—may file an O-1A petition on the owner's behalf, provided a genuine employer-employee relationship is established.
The O-1A requires demonstrating "extraordinary ability" through sustained national or international acclaim. Unlike the H-1B, there is no annual cap, no lottery, and the $100,000 overseas-beneficiary fee that applies to H-1B petitions does not apply to O-1A. Combined O-1 approval rates (covering both O-1A and O-1B categories) reached 93.8% in FY 2025 Q3, reflecting more predictable adjudication standards.
Updated USCIS guidance broadly recognizes AI-relevant evidence. Examples of how founders have presented evidence under the existing eight O-1A criteria include:
For a beneficiary-owned entity to petition, the company must establish a genuine employer-employee relationship with real authority to supervise, evaluate, set compensation, and terminate employment. Governance structures such as a board of directors, investors with governance rights, or advisory boards with documented authority can satisfy this requirement. The January 2025 guidance does not mandate any single structure—what matters is that genuine supervisory authority exists and is documented.
For founders ready to explore this path, Alma's O-1A visa guide provides detailed eligibility criteria and evidence strategies.
For AI founders committed to the U.S. long-term, employment-based green cards offer permanent solutions without dependence on employer sponsorship.
EB-1A shares similar evidence requirements with O-1A but grants permanent residency. Successful AI founder petitions typically demonstrate achievements such as patents for AI/ML innovations, significant funding secured from recognized investors, media coverage in major tech publications, speaking engagements at prominent conferences, and a critical role in distinguished organizations.
The advantage: no job offer or labor certification is required. The individual self-petitions based on achievements alone (applicants must also show intent to continue working in the field and that their presence benefits the U.S.).
EB-2 NIW allows self-petitioning when the beneficiary's work serves U.S. national interests—and AI development increasingly fits this framework. While Trump administration executive orders (such as EO 14179, issued January 23, 2025) continue to designate AI as a national priority, it is worth noting that the Biden-era EO 14110, which contained immigration-specific provisions for AI talent, was revoked on January 20, 2025. Current AI executive orders focus on deregulation and infrastructure rather than immigration pathways directly.
Under the three-prong test established in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), the applicant must demonstrate:
To qualify for the EB-2 classification itself, the applicant must hold an advanced degree (master's or higher, or a bachelor's plus five years of post-baccalaureate progressive experience in the specialty) or demonstrate exceptional ability.
AI founders whose work addresses healthcare diagnostics, autonomous systems, cybersecurity, or infrastructure optimization may present compelling national interest arguments. Kaggle competition success, technical contributions, and data science leadership can serve as evidence of exceptional ability.
Processing times for EB-2 NIW currently run approximately 18–21+ months for standard I-140 adjudication, per USCIS data as reported by multiple practitioner sources in early 2026. Premium processing (45 business days) is available for Form I-140 only. Priority date backlogs—typically over a decade for Indian nationals in EB-2/EB-3 and approximately 4–8 years for Chinese nationals—make early filing advantageous. EB-1 backlogs for both countries are significantly shorter at approximately 2–3 years. Explore EB-2 NIW requirements to assess eligibility.
The H-1B visa faces mounting restrictions that make it challenging for AI startup founders in 2026.
The $100,000 fee imposed by a September 2025 presidential proclamation applies to new H-1B petitions where the beneficiary is physically outside the U.S. at the time of filing. It does not apply to extensions or amendments by the same employer, change-of-status filings for individuals already in the U.S., or petitions filed before the September 21, 2025 effective date. The proclamation has a 12-month duration (expiring September 21, 2026, absent extension) and was upheld by a federal court.
The FY 2026 H-1B cap lottery had an approximately 35% selection rate, based on USCIS data showing roughly 118,660 unique beneficiaries selected from 336,153 eligible registrations—an improvement over prior years due to USCIS's beneficiary-centric selection system reducing duplicate registrations.
Beneficiary-owners with more than 50% ownership (or majority voting rights) in the petitioning company receive initial H-1B petitions and first extensions limited to 18-month validity periods, rather than the standard three-year maximum, per the H-1B Modernization Final Rule effective January 17, 2025.
A wage-weighted selection final rule was published by DHS on December 29, 2025 (90 FR 60864), effective February 27, 2026. This replaces the random H-1B cap lottery with a system that assigns selection weight by wage level: Level IV positions receive four times the selection weight of Level I (entry-level) positions.
For startups with limited runway, these cumulative costs and restrictions may be financially prohibitive. Individuals filing change-of-status petitions while physically in the U.S. are not subject to the $100,000 fee, which is relevant for current F-1 students and other individuals already in the country.
L-1A Visa: For founders with existing foreign companies, L-1A enables transfer to U.S. operations. L-1A approval rates reached 92.4% in FY 2025 Q1–Q3, with no annual cap. Standard processing currently takes approximately six months; premium processing (15 business days) is available.
E-2 Treaty Investor: Founders from 80+ treaty countries may qualify with proportional investments—typically $80,000–$150,000 for service-based AI startups. Pathway may work for pre-product companies with cloud provider grants and early partnerships. Consular processing typically takes 1–5 months, varying significantly by embassy.
TN Visa: Canadian and Mexican professionals may use TN status for listed occupations under the USMCA, but self-employment and controlling ownership are prohibited. Per the State Department Foreign Affairs Manual (9 FAM 402.17), an applicant cannot qualify for TN status to establish a business in which the professional will be, in substance, self-employed. TN is generally not a viable path for startup founders who own or control their companies.
For treaty country nationals, E-2 visa options provide faster processing than H-1B lottery systems.
Successful AI founder immigration often involves treating the case as a strategic project, not a one-time application.
Documenting achievements 12–24 months before filing can strengthen a petition significantly. Relevant activities include contributing to technical publications and conferences, seeking press opportunities when reaching milestones, participating as a judge for hackathons or pitch competitions, presenting at industry events and webinars, and applying for recognition programs, grants, and competitions.
Each piece of evidence can strengthen multiple visa categories simultaneously. O-1A evidence often supports later EB-1A or EB-2 NIW petitions.
Processing times for the visa categories discussed in this article, based on USCIS data reported by practitioner sources in early 2026, are as follows. O-1A standard processing generally runs 2–4 months, with premium processing available at 15 business days. E-2 consular processing typically takes 1–5 months, varying significantly by embassy or consulate. L-1A standard processing takes approximately 6 months, with premium processing available. EB-2 NIW standard I-140 processing currently takes approximately 18–21+ months, with premium processing (45 business days) available for the I-140 stage only. Cap-subject H-1B petition adjudication typically takes 3–5 months, though the total timeline from lottery registration (March) through the October 1 start date spans approximately 6–7 months.
All USCIS case processing times are reported on a unified national basis through USCIS processing times and no longer vary by service center location, as USCIS continues its transition to consolidated Service Center Operations (SCOPS) reporting.
Premium processing fees for I-129 and I-140 petitions increase to $2,965 effective March 1, 2026, per a DHS final rule adjusting for CPI-U inflation.
Common issues that weaken petitions include insufficient governance documentation (self-sponsorship requires demonstrating genuine oversight authority, not merely creating a board on paper), weak national interest arguments (NIW petitions must demonstrate broader public benefit beyond company profitability), relying on too few evidence categories (petitions are generally stronger when they clearly satisfy at least 3–4 criteria rather than barely meeting minimums), and filing during funding transitions or before accumulating sufficient evidence.
Alma's business platform includes built-in compliance tracking and proactive alerts to help founders manage these complexities.
Understanding total costs helps founders budget appropriately.
Attorney Fees (Alma Pricing): O-1A New: $8,000. O-1A Extension/Amendment: $3,000. EB-1A/EB-2 NIW: $10,000 ($7,000 with an approved O-1). L-1A Initial: $6,000. E-2 varies by complexity.
Government Fees (per USCIS fee schedule effective as of the April 2024 fee rule, 8 CFR Part 106): USCIS base filing fees range from $460 (H-1B, small employer) to $1,385+ (L-1A, standard employer), with I-140 self-petitions at approximately $1,015 including the Asylum Program Fee. Premium processing: $2,805 currently, increasing to $2,965 effective March 1, 2026. Note: The separate $85 biometrics fee was eliminated effective April 1, 2024; biometrics costs are now incorporated into base filing fees. The Fraud Prevention and Detection Fee for initial L-1 petitions is $500 (also applies to initial H-1B petitions). The Public Law 114-113 surcharge for employers with 50+ employees where 50%+ are in H-1B/L-1 status is $4,500 for L-1 petitions and $4,000 for H-1B petitions.
Third-Party Costs: Credential evaluations: $100–$400. Translations: varies by volume. Expert opinion letters: $500–$2,000+.
Transparent pricing details can help enable better financial planning for early-stage companies.
AI founders benefit from immigration counsel that understands both technology and entrepreneurship.
The difference between traditional immigration firms and tech-enabled providers often translates to weeks of time savings and significantly reduced administrative burden during critical company-building periods.
RFEs are common and indicate USCIS needs additional documentation rather than outright denial. Strong responses typically include detailed expert opinion letters, supplementary evidence addressing specific concerns, and legal arguments citing relevant case precedents. Most RFEs result from incomplete initial evidence packages rather than fundamental eligibility issues. Working with experienced counsel can reduce RFE likelihood, and Alma's Growth and Enterprise plans include one free refile in case of initial denial or comprehensive RFE.
Visa transitions are common as founders accumulate achievements and their companies mature. Many founders begin with E-2 (if from treaty countries) while building extraordinary ability evidence, then transition to O-1A once sufficient documentation exists. Similarly, O-1A holders often file EB-1A or EB-2 NIW petitions for permanent residency while maintaining temporary status. However, it is important to note that O-1A is not officially classified as a dual-intent visa (unlike H-1B and L-1), and O-1A holders who file I-485 adjustment of status applications should obtain Advance Parole before traveling internationally. The key is maintaining continuous authorized status throughout transitions.
Despite being designed specifically for startups, IER sees limited use because it grants "parole" rather than visa status. This discretionary parole can be revoked, provides no guaranteed re-entry after international travel, and offers no direct green card path. The thresholds—$311,071 in qualified U.S. investment OR $124,429 in government grants (adjusted per CPI-U, effective October 1, 2024, per 8 CFR 212.19)—are substantial, and only investments from qualified U.S. investors (U.S. citizens, lawful permanent residents, or U.S.-organized entities majority-owned by citizens or LPRs) count. Many founders who can meet IER requirements may also qualify for O-1A or E-2, which offer more predictable pathways.
Under the eight statutory O-1A criteria (8 CFR 214.2(o)(3)(iii)(B)) and the comparable evidence framework (8 CFR 214.2(o)(3)(iii)(C)), AI founders have presented evidence including GitHub contributions to major open-source projects, Kaggle competition rankings, citations of published ML research, patents for AI innovations, and documented adoption of algorithms they developed. These are generally argued through the comparable evidence framework when they do not fit neatly into a traditional criterion—USCIS has not explicitly named specific platforms in official guidance. Venture funding from recognized investors may serve as evidence of "high remuneration," while participation in highly selective accelerators (Y Combinator, Techstars, 500 Startups) can support comparable evidence arguments. Technical conference presentations and media coverage in major publications help demonstrate national recognition.
Employment-based green card backlogs are significant. For Indian nationals, EB-2 priority dates are approximately 12+ years behind, with estimated waits of 15–20 years for new filers. Chinese nationals face waits of approximately 4–8 years in EB-2/EB-3 categories. EB-1A and EB-2 NIW offer shorter priority date waits because they are self-petition categories with different demand patterns—EB-1 backlogs for both countries currently stand at approximately 2–3 years. Many founders maintain O-1A status (renewable indefinitely) while waiting for priority dates to become current. The practical implication: founders from backlogged countries may benefit from filing green card petitions early, even while on temporary status, to establish the earliest possible priority date.
