Visa Options for Startup Founders: O-1, E-2, EB-1A, and NIW

Founder & Managing Attorney

Accurate as of

September 29, 2026

The main U.S. immigration paths for a startup founder are the O-1A visa for founders who can document extraordinary ability, the E-2 treaty investor visa for nationals of treaty countries who invest a substantial amount in a company they control, and two green cards the founder can file without an employer sponsor: EB-1A extraordinary ability and the EB-2 National Interest Waiver (NIW). The right choice turns on nationality, track record, capital and whether the goal is to work in the United States now, to become a permanent resident, or both, and many founders use two paths in sequence, such as an O-1A or E-2 now and an EB-1A or NIW for the green card.

How do the options compare?

	O-1A	E-2	EB-1A	NIW (EB-2)	International Entrepreneur Parole
What it is	Temporary visa	Temporary visa	Green card	Green card	Parole, not a visa or status
Core standard	Major award, or 3 of 8 criteria plus overall merits	Substantial, at risk investment in a non-marginal business the founder develops and directs	One-time major award, or 3 of 10 criteria plus final merits	Advanced degree or exceptional ability, plus the three part Dhanasar test	Qualified U.S. investment or government awards, at least 10% ownership, central role
Nationality limit	None	Treaty countries only	None	None	None
Capital needed	None required	No fixed minimum; proportional to the business	None required	None required	$311,071 from qualified investors, or $124,429 in government awards
Who files	U.S. employer or agent; not the founder personally	Founder or company	Founder may self-petition	Founder may self-petition	Founder
Main USCIS fee	I-129 $1,055 ($530 for 25 or fewer FTE) plus Asylum Program Fee	Consular application; I-129 $1,015 if changing status in the U.S.	I-140 $715 plus Asylum Program Fee ($300 or $600)	I-140 $715 plus Asylum Program Fee ($300 or $600)	I-941 $1,200
Period	Up to 3 years, extensions in up to 1 year increments	Renewable while the business qualifies	Permanent	Permanent	Up to 30 months, one re-parole of up to 30 months

Fee sources: 8 CFR 106.2. Premium processing, where available for the I-129 and I-140, is $2,965 (91 FR 1059).

O-1A: the founder with a record, needed now

The O-1A has no annual cap and no lottery. The founder must show a major internationally recognized award or at least three of eight criteria, among them published material about the founder, judging, original business contributions of major significance, a critical role at a distinguished organization, and high remuneration (USCIS Policy Manual, Vol. 2, Part M, Ch. 4). USCIS then weighs the record as a whole. Two points matter for founders. Comparable evidence is allowed where a criterion does not readily apply, and the Policy Manual gives as an example "highly valued equity holdings in the startup" as comparable to high salary. And "an O beneficiary may not petition for himself or herself," so a U.S. employer or agent must file. An approved or pending immigrant petition is not a basis to deny O-1 status (8 CFR 214.2(o)(13)), which makes the O-1A a common bridge to EB-1A.

E-2: the founder with treaty nationality and capital

The E-2 is for nationals of countries with a qualifying treaty with the United States. The treaty nationals must own at least 50 percent of the business, the founder must develop and direct it, the funds must be at risk, and the business must be more than marginal (9 FAM 402.9; 8 CFR 214.2(e)). There is no fixed minimum; the test is proportional to the cost of the business. Gerardo Kloss and I explain the amounts, with examples, in How Much to Invest for an E-2 Visa. The E-2 requires an intent to depart when status ends, and it does not by itself lead to a green card.

EB-1A: the founder at the top of the field

EB-1A requires a one-time major international award or at least three of ten criteria, followed by a "final merits" review of whether the founder is among the small percentage at the very top of the field (8 CFR 204.5(h)(2) and (3); Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010)). No job offer or labor certification is required; the founder must show he or she will continue working in the field (8 CFR 204.5(h)(5)). Daniel Lopez, Esq. walks through each criterion in The Ten EB-1A Criteria Explained.

NIW: the founder whose venture is the argument

The NIW waives the job offer and labor certification for an EB-2 applicant with an advanced degree or exceptional ability. Under Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), the founder must show (1) the proposed endeavor has substantial merit and national importance, (2) he or she is well positioned to advance it, and (3) on balance, waiving the job offer and labor certification benefits the United States. For founders, the business plan, traction, funding and letters from people outside the company carry the case. See How the National Interest Waiver Works Under the Dhanasar Test.

International Entrepreneur Parole: still on the books

The International Entrepreneur Rule remains in the regulations at 8 CFR 212.19 (eCFR, up to date as of September 23, 2026), and the Form I-941 fee remains in the fee schedule. It requires a startup formed within the five years before filing, at least 10 percent ownership, a central and active role, and at least $311,071 from qualified U.S. investors or $124,429 in qualified government awards within the preceding 18 months. Parole is discretionary, lasts up to 30 months with one re-parole of up to 30 months, and is not a green card path.

Where do the green cards stand in the Visa Bulletin?

In the October 2026 Visa Bulletin, the first of fiscal year 2027, EB-1 is current for all countries except China (Final Action Date July 1, 2023) and India (February 1, 2023). EB-2 has a final action date of January 1, 2025 for most countries, October 1, 2021 for China and November 1, 2013 for India.

Which path fits which founder?

Technical founder with press, patents or notable funding, who needs to be in the U.S. now: O-1A through the company, then EB-1A when the record is at its strongest.
Founder from a treaty country with capital and an operating plan, but little public recognition: E-2, with a separate green card strategy, because the E-2 does not lead to one.
Founder with an advanced degree building in a field of national importance, early in traction: NIW, while holding O-1A, E-2 or other status.
Founder born in India or China: the backlog matters. EB-1A carries earlier dates than EB-2 for both countries, which favors EB-1A where the record supports it.
Founder with U.S. venture funding above the thresholds but no treaty nationality and no O-1 record yet: International Entrepreneur Parole, as a bridge while the record is built.
Founder who plans to be employed by the startup in H-1B status: possible, but the lottery, the pending $100,000 and proposed $103,265 charges, and wage-weighted selection make it the least predictable option; see our analysis of the proposed fee.

Our view

For most founders I advise, the question is not which single visa, but the order. The strongest plans pair a temporary status that lets the founder work now with a self-petitioned green card filed when the evidence peaks. A filing that is complete on day one matters more than it used to, because since August 5, 2026 USCIS may deny without first issuing a Request for Evidence.

Key numbers

Item	Amount	Source
I-129 (O)	$1,055; $530 for 25 or fewer FTE	8 CFR 106.2
I-129 (E, change of status)	$1,015	8 CFR 106.2
I-140 (EB-1A, NIW)	$715 plus Asylum Program Fee ($300 at the small employer rate commonly applied to self-petitioners, otherwise $600)	8 CFR 106.1(f); 106.2
I-941 (entrepreneur parole)	$1,200	8 CFR 106.2
Premium processing (I-129, I-140)	$2,965	91 FR 1059
Entrepreneur parole investment	$311,071, or $124,429 in awards	8 CFR 212.19

What to do

List your facts: nationality, degrees, awards, press, funding, revenue, equity and role.
Check treaty eligibility before planning an E-2.
Score yourself against the O-1A and EB-1A criteria honestly; gaps are fixable over months, not days.
Write the NIW endeavor in one paragraph: what, why it matters nationally, why you.
Sequence the filings so the temporary status covers you while the green card is pending.
Book a consultation. Samper Law consults in English, Spanish and Portuguese and represents founders in all 50 states and abroad.

Sources

Accurate as of September 29, 2026.