H1B for Entrepreneurs and Startups (Self-Sponsorship)
The foreign migrants who come to the US for employment purposes have great potential to upscale the US economy by providing services and creating and running their own company. The fact states that 40 percent of Fortune 500 companies are founded by immigrants or their children. These big companies provide jobs to thousands of people.
So, is it worth it to provide a self-sponsorship option for foreign nationals who are working in the US on an H-1B visa? Absolutely Yes!
The foreign nationals working in specialty occupations can create big things in the US, and they must be given an opportunity to become self-employed founders by self-sponsoring themselves. For example, the gigantic companies of America that have influence in the whole world like google, e bay or intel have immigrant entrepreneurs.
Visa Options for Immigrant Entrepreneurs
United States must ensure that the world’s great talent possessing innovation and spirit of entrepreneurship shall not leave the US because of the non-availability of visa options to them.
When the option of self-sponsorship is limited, the entrepreneur talent in the US ends up setting competitors’ business abroad. The following are the visa options if you are investing in the US:
E 2 Treaty Investor
This visa option is available to individuals living in treaty countries with which the US maintains a treaty of commerce and navigation, or with which the United States maintains an international qualifying agreement, or which has been deemed a qualifying country by legislation. Under E 2 visa status, the individuals can start a small company by investing some amount of money in that company.
EB 5 Visa
What if I do not belong to a treaty country? The USCIS provides you with another investment visa option, EB 5 visa, where you can make some big investments in a business in the US.
The benefit of applying under this category is that it is an immigrant visa option, and you can apply for a green card when you become eligible. Mind you, you need a substantial amount to invest, so unless you are a millionaire, we do not advice you to think about this visa option.
H-1B Visa
You must be wondering, what if I am neither a citizen of a treaty country nor do I have million dollars? How can I invest in the US? USCIS is considerate about this problem, and they have provided another option to foreign nationals to invest in the US and self sponsor their H-1B visas.
The H-1B visa is the specialty occupation visa that allows foreign nationals possessing at least a bachelor’s degree to work in the US. The intention for creating H-1B visas was to fill the gap between the demand and supply of specialized skilled workers to support the US employers.
The H-1B visa holders who want to start their own business in the US previously had very little hope to self-sponsor themselves and get an H-1B visa.
However, the US Department of Homeland security showed its intent on August 2, 2011, to attract the brightest talent around the world to invest their skills, talents, and ideas in the American economy to create more jobs.
The department states that the American immigration policies will be positive for the foreign talent who will help in growing the American economy and creating more jobs. You have to satisfy H-1B visa requirements to qualify for the visa and to self-petition for yourself.
How can I Self Petition Myself for H-1B Visa Status?
The current immigration laws allow foreign entrepreneurs to self sponsor their H-1B visa even if they have a 100% stake in the company or are the sole owner of the business. As long as they meet the following requirements, USCIS will not reject your application based on non-eligibility:
Establishing that the Company has the Right to Control you
The sponsoring company must have the right to control the beneficiary’s employment. You should be able to demonstrate that even after being the majority shareholder, they can control you for employment purposes.
For example, Sam runs a company and holds a 70% stake in the company. The bylaws of the company have given Sam the power to fire anyone whom he deems not appropriate for the company.
The manager and CEO of the company have a fear of getting fired before giving any instructions to Sam because it may not be liked by Sam. The company has no control over Sam as an employer, and hence it is very likely that USCIS will not approve Sam’s H 1b petition from his own company.
Establishing the Employer-Employee Relationship
USCIS provides that to establish a legitimate employer-employee relationship; the foreign H-1B visa holders can show evidence that there is a separate board of directors who have the right to hire, fire, pay, and supervise the employee’s employment. In another sense, it basically states the above point that the employer should be able to control the beneficiary’s employment.
It can be true for sole business owners as well. The following evidence can be provided to fulfill the criteria, such as other investors in your business or a separate Board of Directors. The vital thing is that such investors or board of directors should be able to exercise duties of hiring, firing, or controlling your employment.
To illustrate: Sam, who runs a food chain in the UK, wants to start his business in the US. In the UK, the company has a separate board, CEO, and other partners who have the power to employ Sam and fire him as well. Sam can open his business in the US and can be employed by his own company. The chances of approval of Sam’s H-1B petition are very bright.
If you are able to maintain these two conditions, it is very likely that you can do self-sponsorship from your own company. It is ideally recommended to take legal services from an immigration attorney who can advise you in your best interests.
Herman Legal Group can assess your immigration case and tell you the relevant documents that can make your H-1B visa application a successful one. Make sure to contact us for any immigration-related queries.
What Evidence can I give to show the Employee-Employer Relationship?
To show that the employer company is having employee employer-employee relationship with you, you can show the following pieces of evidence to the USCIS to prove your visa eligibility:
- An employment contract between the company sponsor and you, showing the terms and conditions of the employment.
- Document showing independent board having the power to fire you and control your employment.
- The bylaws of the company give separate power to the board of directors, other investors or other partners to control your employment, fire you and supervise you.
- A job offer providing evidence of the job being offered to you, determining the employer-employee relationship, and other necessary terms.
- The board resolution or certificate of incorporation describing the relationship between the company employees and the board.
- Documents showing the investor’s rights.
- Term Sheet
- Documents showing the chain of command on the beneficiary or the documents that can show that the beneficiary has been evaluated on their performance in the company.
- Other documents that can prove that you can be terminated and that you are acting in a bonafide manner and that you do not start the company to get an H-1B visa.
These documents generally will make your application stronger and will have a positive impact on your immigration process.
I am Working for a US Employer on an H-1B visa and am unsure how I can get a self-petition for myself for an H-1B visa?
To sponsor yourself, you should have a company that can sponsor your H 1b visa. You should maintain your current visa status and continue working for your sponsoring company and start a new company in the US. After incorporation of that company, you can file an H 1b petition for yourself if you satisfy the requirements discussed above.
It is important to note that when you are self-sponsoring yourself and are on H 1b status in the US, you maintain your H 1b visa status while the decision is pending for your visa. If USCIS denies your visa, you might risk being in unauthorized stay in the US.
Green Card Route for Immigrant Entrepreneur
When considering your green card options before self sponsoring yourself for an H 1b visa, you should keep in mind that H 1b visa is a nonimmigrant visa allowing you to have dual intention.
Therefore, it is not wrong if you are considering becoming a permanent resident in the US if you are an H 1b visa holder. The h 1B visa is a non immigrant visa, so the first step is to considering switching your visa to an immigrant category. Since you already are on employment visa, here are some viable options for you:
EB -1 Visa: You can apply for EB 1 visa if you found a US employer to sponsor your petition or else you can self petition yourself under extraordinary ability category
EB-2 Visa: When you think you have advanced degree or exceptional ability and can meet the requirements under this visa, you can apply for EB-2 visa.
EB-5 Visa: You should opt this category when you can make big investments in a business in the US.
It is best to consult an immigration law firm to make the best decisions for getting your green card. You could easily waste a substantial amount of time if you apply in the wrong visa category.
How Can Herman Legal Group Help You?
The immigration attorneys at Herman Legal Group specialize in handling employment-related immigration cases. When you want to start your own business, we hope that immigration mistakes shall not jeopardize your application result.
You can have a quick talk with our immigration attorneys, either face to face or online, and immediately resolve all your immigration-related queries. H 1b visa can sometimes become complex while determining your employer-employee relationship, and all can be resolved with a quick consultation.
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