H-1B Visa for Entrepreneurs

Self-Sponsoring H-1B Visa

U.S. businesses use the H-1B visa program to employ foreign workers in specialty occupations that require theoretical or practical application of a body of highly specialized knowledge, including, but not limited to: scientists, engineers, or computer programmers. Generally, to qualify for an H-1B visa, the foreign national employee must be sponsored by an US employer. In addition, the foreign national must have a bachelor degree or the equivalent combined education and experience, and the employer must pay the H-1B employee the higher of the actual wage or prevailing wage.

Until 2010, it was unclear whether or not foreign nationals who owned business could get their company to sponsor them for H-1B visa. However, on January 08, 2010, USCIS stated that H-1B beneficiary who is self-employed or has an ownership interest in the petitioning company could sponsor himself or herself, provided that the petitioning entity is distinct from the beneficiary such that there is an employer-employee relationship that the entity can control. There are various types of evidence to establish the employer-employee relationship in situation where the beneficiary has an ownership interest in the petitioning company, including:

Copy of the signed Employment agreement between the petitioner and beneficiary detailing the terms and conditions of employment;

Separate board of directors showing control over hiring and firing decisions;

Term Sheets;

Capitalization Table;

Stock purchase Agreement;

Investor rights Agreement;

Voting Agreement;

Organizational documents and operating agreements;

Employment contracts between the petitioning employer and its client that show the petitioner will have the right to control its employees that are placed at a client site and the supervisory relationship between the employer and the individual;

Other evidence establishing that the employer can terminate the foreign national.

 

If you are considering sponsoring an employee for an H-1B visa, or would like a free case evaluation, contact Dobreva Law Office at ddobreva@dobrevalaw.com or call us as 214-307-2770.