H-1B Visa: Self-Employed

Q: Can I apply for an H-1B if I am self-employed?

A: In general, it is required to show a valid employer-employee relationship in order to obtain an H-1B visa. This is determined by whether the U.S. employer may hire, pay, fire, supervise, or otherwise control the work of the H-1B worker. In some instances, the sole or majority owner of the company petitioning for the visa may be able to establish a valid employer-employee relationship if they are able to show that they have the right to control the beneficiary’s employment.

You may not be self-employed in the traditional sense and be the beneficiary of an H-1B application for that same company. There must be an independent company that can exert the authority to hire, pay, supervise, and fire outside of your control.

However, if you own your own company, you may still be able to demonstrate that there is an employer-employee relationship if the control of your work is exercised by someone other than yourself. For instance, if your company has investors, a board of directors, preferred shareholders, or other factors that show that your organization has the right to control the conditions and terms of your employment, then it is possible for you to meet this requirement. Specifically, it should be shown that the right to hire, fire, pay, supervise, or otherwise control your work is done by others.

You will also need to prove that there is an offer for a bona fide job, that the position offered is for a member of the profession, that the employer has demonstrated an ability to pay the prevailing wage, that you have at least a bachelor’s degree related to the job area or a foreign equivalent, and that the job creates job opportunities for U.S. workers.

Contact our office today to speak with a lawyer to learn more about your options and to begin the visa application process.

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Q: How do I demonstrate an employer-employee relationship if I own my own company?

A: In the case where you have an ownership interest in the company petitioning for your H-1B, it is essential to show the distinction between your interest and the control over your work. You must provide clear documentation to establish that the employer, not you, will have the right to supervise, direct, and review your work and can terminate your employment.

The USCIS will take into account several factors when determining whether the company has independent control over the employment. These factors include: (1) the skill required; (2) the source of the instrumentalities and tools; (3) the location of the work; (4) the duration of the relationship between the parties; (5) whether the hiring party has the right to assign additional projects to the hired party, and other factors. Note that USCIS exercises discretion as to whether this burden is met.

Some of the possible evidence that you may provide in order to demonstrate your ownership interest along with the fact that your work is controlled by others includes:

  • Capitalization table
  • Term sheet
  • Stock purchase agreement
  • Voting agreement
  • Investor rights agreement
  • Organizational documents
  • Shareholder or operating agreements
  • An employment contract or agreement between you and the employer which details the terms and conditions of employment
  • An offer letter describing the nature of the employer-employee relationship
  • A document showing that a separate board has the control over hiring and firing decisions, such as board resolutions
  • Company bylaws shows power of management
  • Description of the performance review process
  • Other indicators that the employer can terminate you

Contact our office today to speak with a lawyer to learn more about your options and to begin the visa application process.

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Q: How can I start my own business while I am already working for my original H-1B petitioning employer?

A: Under the H-1B portability rule, there are two ways to start your own business while you are already working for your original H-1B petitioning employer.

The first option is to create the company and then file an H-1B petition for yourself. You still have to file an H-1B petition for the new job, but you can maintain your old job in the meantime. After your new H-1B has been approved, you can work for both the original petitioning employer and your new company at the same time. The new job for your own company may need to be part-time, of course, if the original job is full-time. If this is the case, you should note that in your H-1B petition.

The second option is to take advantage of the portability rule, as long as you meet the requirements. If so, then you can promptly work for your own company right after you file the new H-1B petition. You must meet these requirements:

  • You are currently in H-1B status when filing the new petition. There cannot be any gaps in your status in order for you to take advantage of the portability rule.
  • You are lawfully admitted to the U.S.
  • The new H-1B petition was filed before the end of you period of authorized stay.
  • You have not been employed without authorization.

It is important that, if you wish to own your own company and use this to obtain your H-1B visa, that you maintain your original H-1B status until the new position is approved. This will allow you to avoid periods of unlawful presence or unauthorized stay in the U.S. in the event that your new H-1B petition is denied.

Contact our office today to speak with a lawyer to learn more about your options and to begin the visa application process.

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Q: I just started my business and want to ensure that I qualify for a self-sponsoring H-1B, what can I do?

A: In order to qualify for an H-1B visa with the company that you own, you will have to show that there is an employer-employee relationship with the control of your work being exercised by someone other than yourself.

One of the easiest ways to do this is to create a Board of Directors for your company. USCIS has stated that, “… if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary’s employment, the petitioner may be able to establish an employer-employee relationship with the beneficiary.” This was not always the case. This is a major step forward and is basically a reversal of USCIS’s policy announced in its January 2010 memo.

This Board should have the ability to make the major decisions regarding your work. This includes the ability to supervise, direct, and review your work and the ability to terminate your employment. It is a good idea to have a board resolution detailing this information, as well.

In addition to an independent board of directors, it may be sufficient to prove there are preferred shareholders, investors, or other factors to determine that the company controls your terms and conditions of employment with your company.

Contact our office today to speak with a lawyer to learn more about your options and to begin the visa application process.

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Q: Are there any alternatives to the H-1B visa if I am an entrepreneur or self-employed?

A: Yes, if you are self-employed, two alternatives to the H-1B visa are an E-2 visa or an EB-2 visa.

E-2 visas are generally issued to treaty investors. Non-immigrants of the United States can be allowed to enter its territory if only he maintains significant investments with U.S. The volume of investment should be enough to justify the worth of investor to invest successfully in the United States. There are no mandatory limits on the amount of investment required. To qualify for an E-2 visa, the treaty investor must be a national of a country with which the United States maintains treaty relations of navigation and commerce. The treaty investor must be an active investor in an affiliated organization of the United States. The treaty investor must enter United States only to direct investment to enterprises of the United States.

An EB-2 visa is an immigrant visa that allows foreign nationals who hold an advanced degree to obtain permanent U.S. residence. You must be a member of the professions holding advanced degrees or their equivalent or because your exceptional ability in the arts, sciences, or business will substantially benefit the national economy, educational, or cultural interests or welfare of the U.S.

Since the USCIS has began allowing for self-employed H-1B visas, it seems that this has worked to make it easier for foreign entrepreneurs to qualify for the National Interest Waiver (NIW) exemption of the EB-2 visa category. The NIW exemptions waives the job offer and labor certification requirements for an EB-2 visa if it is in the national interest of the U.S. These two requirements have been large barriers to obtaining permanent residence. Therefore, now, if an entrepreneur can show that his or her efforts will benefit the U.S.’s national interest, he or she could qualify for the NIW exemption.

Contact our office today to speak with a lawyer to learn more about your options and to begin the visa application process.