One of the H-1B requirements is that the petitioning U.S. company demonstrates that there is an Employer-Employee relationship. This means that the petitioning company will have to show that it can hire, pay, fire, supervise and otherwise control your work.
If you are the sole operator, manager, and employee of the U.S. company, you cannot be fired by the petitioning company, and there is no outside entity that can exercise control over you, the company could not petition you for the H-1B visa, as it would simply not be able to demonstrate that it can control your work.
USCIS previously acknowledged that a sole shareholder of a U.S. corporation can be employed by that corporation, as a corporation is a separate legal entity from its owners.
However, if you own a majority in a corporation and you do not report to anyone (but yourself), you would not be able to establish that a valid employer-employee relationship exists.
An O-1 visa is a visa that allows individuals with extraordinary ability to come to the U.S. in a number of different fields. The O-1A visa is for individuals with an extraordinary ability in the sciences, education, business, or athletics, and is set aside for people who have risen to the top of their profession.
The Department of State’s Foreign Manual was recently amended to allow for a legal entity owned by an alien to file an O-1 petition on his/her behalf. O-1 visa applicants can now set up a legal entity in the U.S. and this entity can then sponsor them for an O-1 visa.
Certain professionals who are citizens of Canada or Mexico can apply for TN visa. Self-employment is not allowed on TN visa. Therefore, you cannot work for a company on a TN visa where you are the sole or controlling shareholder or owner. If you want to read more about this topic, please click here.
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