I’m considering an O-1 visa as a freelancer through an agency arrangement — where you form an LLC that hires you. Has anyone set up an LLC purely for the case and the visa? Or do immigration authorities later require the company to actually operate for about 3 years and be a real, active business?
I looked into this — I’d heard somewhere that the company has to show a profit, but the lawyer explained that for a newly formed LLC that’s not a requirement. The main thing is that the LLC has real activity — contracts, a bank account, an EIN (Employer Identification Number). None of the people who actually filed mentioned three years of operation; that’s more about the EB categories.
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Thanks, that reassured me a bit. Do the contracts have to be with real external clients, or is it enough that the LLC has a contract with me as a freelancer?
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Regarding contracts — here’s an important nuance. My lawyers explained that the requirement is exactly this: the company must have either revenue or investments in its bank account. An LLC agreement with you as an employee is the basis of the case, but it doesn’t generate income by itself. USCIS checks whether there is real business activity — so you need external clients who pay money into the LLC, and then the LLC pays your salary.
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I opened an LLC in a similar way — owner, but not CEO. An outside manager is hired who, on behalf of the LLC, signs an employment agreement with you. He is the petitioner before USCIS — then everything looks like a normal employer–employee story, not a self-petition through your own company. I opened a bank account with a Russian passport without any questions; nobody cared about my visa status.
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Regarding the formal requirements for the petitioner — two non-citizens can form an LLC and it can be the petitioner for an O-1; the citizenship of the members doesn’t matter. As for the ability to fire — that’s a real requirement: the lawyer explained there must be a genuine employer-employee relationship, and USCIS looks at whether the company has the right to terminate the contract. In the employment agreement this is stated explicitly — the “right to terminate.” Without this clause the case can be turned down.
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A board of directors for a single‑member LLC is, in effect, just the operating agreement with properly spelled‑out powers. You don’t need to appoint separate people; it’s enough that the document explicitly authorizes the manager to hire and fire employees independently of the member’s wishes. The “right to terminate” in an employment agreement, without that backing in the operating agreement, carries less weight — USCIS looks at both documents together.
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About EB-2 through the same LLC — that scheme doesn’t work anymore. For PERM you need to prove a genuine business need: that the company is hiring for a specific position, that the salary matches the market for the occupational classification, and that no US workers were found. Your own LLC can file, but USCIS looks for conflicts of interest when the petitioner and beneficiary are effectively the same person. The EB-1 lawyer explained that for that route it’s much better to have an independent employer. As for NIW — there’s no petitioner at all; you file the I-140 yourself.
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The LLC’s bank history — that’s what really matters besides the operating agreement. The attorney explained that several months’ worth of incoming payments from external clients before filing the petition settle the question of actual business activity. One nicely drafted employment agreement with no money moving through the account is a weak point in the case. Invoices from two or three different companies in the document package are concrete evidence that USCIS is looking for.
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An agent-type O-1 through an LLC is exactly for this — you don’t need an amendment for each client.
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Renewing after a year — that’s where the risks become real. When you renew, USCIS may once again request all LLC documents: payments for the period, new contracts, and bank records. I’ve heard that some people dissolve their LLC immediately after approval thinking the issue is resolved, and then at renewal they receive an RFE precisely because of that.
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