H-1B Visa When You Are Self-Employed or Have an Ownership Interest in the Company

The H-1B visa is a non-immigrant visa that permits a company to hire workers in specialty occupations.  This visa category requires that the beneficiary (the foreign worker) have a Bachelor’s degree, and the Petitioner (the U.S. company) can employ the worker for up to six years.  This is a very popular visa because unlike many other non-immigrant visas that make applying for a green card very difficult and require foreign workers to maintain a residence in their home country, the H-1B visa permits for “dual intent.”  This dual intent allows one to apply for a green card while in the U.S. without running into problems.

Until relatively recently, it was unclear whether or not individuals who owned businesses (Self-Employed) could get their company to sponsor them to obtain an H-1B Visa.  In this regard, USCIS takes the position that in cases where the H-1B beneficiary is self-employed or has an ownership interest in the petitioning entity, the petition must demonstrate that the petitioning entity is distinct from the beneficiary such that there is an employer-employee relationship that the entity (not the individual) can control.  In these cases, it is very important to document the employer-employee relationship and the petition must include clear documentation to establish this.   This includes that the employer, and not the individual, will have the right to supervise, direct and review the business owner’s work and terminate/fire his or her employment.

There are various types of evidence that can be used to establish this, including;

  • An employment contract or agreement between the employer and the individual, detailing the terms and conditions of employment;
  • A separate board that has control over hiring and firing decisions;
  • An offer letter that describes the nature of the employer-employee relationship between the petitioner and the foreign beneficiary, as well as the services the foreign national will perform;
  • 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;
  • Board resolutions and articles/certificates of incorporation that describe the relationship between the board, company and employee;
  • Company bylaws showing power of management and the Board
  • Shareholder and or Operating agreements showing the nature of the relationship between the parties
  • A description of the performance review process;
  • A copy of the petitioner’s organizational chart showing the chain of supervisors; and/or
  • Other indicators that the employer can terminate the individual.

Click here for PDF version.

If you are considering sponsoring an employee for an H-1B Visa, contact Scott Legal, P.C..  For more information on these and other immigration Visas click here.  You can also call us at 212-223-2964 or email us at iscott@legalservicesincorporated.com.

Also, click here for your free White Paper that summarizes the top 10 Immigration Questions and Answers.

 

5 Comments

  1. Khalid Munir February 27, 2014 2:50 am

    Is it possible to get an LLC registered in USA and then use the LLC to self employ and sponsor one self for an H1B visa? In that case, is it simpler than an E2 option?

    Reply
    • IanScott February 27, 2014 3:47 am

      Yes. This is the topic of this post so you must meet the criteria listed here. The answer of which one is easier really depends on the facts and circumstances. Also, H-1B is subject to a Cap and E-2 is not.

      Reply
      • Khalid Munir April 1, 2014 4:33 pm

        I am sorry I am seeing this response today after about one month. If H1B as a self employed employee working under an LLC is simpler than E2 and needs as much investment as E2 or less and if the process is also short in terms of time, then I am interested to learn more. In the light of your past experience can you advise the success rate of such applications? Will a business plan still be required? Do you have a retainer agreement for this type of visa? I look forward to your response please. Thank you and warm regards.

        Khalid Munir

        Reply
  2. Hitesh Gupta November 8, 2016 11:05 pm

    I am on H1B and would want to do free lancing consulting / self employed to do consulting work. Is this possible? What are the difficulties.

    I have an MS Economics from USA and Bachelors of Engineering from India

    Reply
    • IanScott November 10, 2016 3:04 am

      Thank you for contacting us. Please find attached our credit card link to make your $250 consultation payment for a one hour consultation. If you end up hiring the firm and your bill is greater than $2,500, we will apply this consultation fee to your final bill. Once we receive the payment, we can schedule and confirm your appointment. Please reach out if you have any questions.

      https://secure.lawpay.com/pages/scottlegalservices/operating

      Kind regards,

      Reply

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