It seems America’s enthusiasm for foreign entrepreneurship, talent and investment has its limits, at least when viewed through the prism of our immigration system. A record of achievement, raising capital, winning customers and creating jobs may help a foreign entrepreneur build a business in America, but will not necessarily secure the founder’s right to live and work there.
Founders must translate those achievements into the requirements of an immigration category. That can be difficult for a startup whose strongest asset is its potential. Investors may be willing to back what a business could become, but an immigration petition generally must establish that the applicant meets a legal standard now.
Three talent and achievement-based routes are available to some founders: the O-1A temporary visa, the EB-1A extraordinary-ability green card and the EB-2 National Interest Waiver (NIW) green card. None requires a minimum investment. But the shorthand term “talent visas” glosses over the nature of the evidence required by United States Citizenship and Immigration Services (USCIS) for approval of a petition.
Who can petition?
The clearest dividing line among these three visa categories is whether the applicant can petition independently or must be sponsored by an employer.
The EB-1A is the only one of the three that truly allows a self-petition. An individual can file on their own behalf, without forming a company or securing an employer to act as sponsor. This makes it an attractive option for founders who want to avoid the administrative complexity of establishing a formal employer-employee relationship purely for immigration purposes. The O-1A, by contrast, does not permit a self-petition, but there is some flexibility as the petitioner may be an employer or an agent. Importantly, that petitioner may be a company owned by the O1A beneficiary. However, this arrangement requires evidence of an employer/employee relationship between the applicant and the sponsoring entity, for example, a board of directors to which the beneficiary formally reports, a written employment contract, and in more conservative structures, a minority shareholder or additional member in the company. These measures help establish that a real employer-employee relationship exists, even if the applicant is an owner/beneficiary.
The EB-2 NIW is a hybrid. EB2 is technically an employment-based immigrant visa category for individuals with a post graduate degree or its equivalent and normally requires a job offer, a sponsoring employer, and a labor certification. But applicants can seek a waiver of those requirements if they can demonstrate that their planned work in the U.S. will be of substantial merit and national importance, effectively allowing a form of self-sponsorship if in the national interest.
What does “extraordinary ability” really mean?
O-1A and EB-1A both require establishing the applicant has extraordinary ability. Depending on the category, evidence may include awards, published articles, significant original contributions, a critical or leading role, or high remuneration. Eligibility requires evidence of at least three such criteria. Satisfying the threshold criteria is only part of the assessment. USCIS also considers whether the evidence as a whole establishes the required level of ability and applies a holistic, and in practice often subjective analysis to come to a final merits determination addressing sustained acclaim and standing at the top of the field. For founders, much of the challenge lies in showing how the company’s achievements establish their own distinction. Although the legal standard is the same for high- achieving artists, scientists, and entrepreneurs applying for this visa, entrepreneurs can face heightened scrutiny, as in practice USCIS often distinguishes a company’s commercial success from its founder’s own achievements.
Company success metrics such as VC funding, jobs creation, and revenues, do not necessarily establish that its founder is extraordinary. In contrast to recognition in the arts or sciences, entrepreneurial achievements may require educating USCIS as to their significance vis-a vis the individual applicant. USCIS guidance recognizes evidence such as venture capital backing, accelerator selection, and market valuation, but founders should clearly connect those outcomes to their own contributions.
Making the national-interest case
The EB-2 NIW instead focuses on the proposed endeavor and the applicant’s ability to advance it. Applicants must show that the endeavor has substantial merit and national importance, that they are well positioned to advance it, and that, on balance, waiving the job-offer and labor certification requirements would benefit the United States. A solid business plan does not automatically meet that test. The petition must explain the endeavor’s broader significance. Saying that a company will generate revenue or contribute to the economy is not enough on its own.
Applicants must also qualify for EB-2 before the NIW analysis begins, usually by having an advanced-degree. A qualifying bachelor’s degree followed by at least five years of progressive experience in the specialty can establish advanced-degree equivalency. Exceptional ability offers another basis, so an advanced degree is not always necessary. However, these requirements can present difficulties for younger founders who eschew a degree or lack experience. Startup culture may celebrate the university dropout or the prodigy, but immigration law does not.
Where Investment Fits In
None of the three categories carries a minimum investment requirement. That said, investment can still play a supporting role. For the O-1A and EB-1A, evidence that credible investors have backed a founder's venture can help show that independent, rational actors believe in the applicant's work, useful supporting evidence even though it is not itself a qualifying criterion. For the EB-2 NIW, investment can serve a related purpose, supporting the case that the proposed endeavor is viable and substantial enough to carry genuine national importance.
A Broader Policy Backdrop
These three visa categories draw from the same limited pool of employment-based immigrant visas available annually, subject to annual worldwide and per-country caps. That pool has recently gained a new category: the so-called Trump gold card, which allows individuals to obtain a green card through a minimum donation of $1,000,000 to the U.S. government, without demonstrating extraordinary ability or a national-interest contribution.
Indeed, the September 2025 executive order announcing creation of the Gold Card directs agencies to treat the donation to the government as evidence of eligibility under existing EB-1 and EB-2 provisions, including the national-interest waiver. Thus, while the order does not remove merit-based requirements, it gives a financial contribution an explicit role in assessing eligibility. Because Gold card allocations are intended to draw from the same overall limited pool of visa numbers set aside for categories like EB-1A and EB-2, at least theoretically this effectively reduces the number of green cards that might otherwise go to entrepreneurs and innovators who meet the merit-based standards these visas were designed to reward.
What this means for founders
O-1A, EB-1A and EB-2 NIW offer meaningful opportunities. Success depends, however, on showing how entrepreneurial work meets standards of extraordinary ability or national importance. A promising start-up can help make that case, but will alone likely not provide a sufficient basis for an approval.
The United States has much to gain from founders who bring investment, build companies and create jobs. Its immigration system still has a chicken/egg problem as it asks many of them to prove an exceptional record before they have had the chance to build one.
The other articles in this series cover the L-1 visa [Part 3], the International Entrepreneur Parole Program [Part 2], and the E-2 visa [Part 1]