The U.S. government has introduced groundbreaking changes to the H-1B visa program, making it easier for startup founders and entrepreneurs to obtain work authorization in the country. This new rule redefines what it means to be an ‘employer’ and allows individuals to sponsor themselves for an H-1B visa through their own businesses, while still requiring a bachelor’s degree or higher in a relevant field for eligibility.
Key Highlights of the New H-1B Rule
- Self-Sponsorship for Entrepreneurs: Business owners can now apply for an H-1B visa through their own startups.
- Expansion of Employer Definition: Entrepreneurs, even majority owners, can serve as both employer and beneficiary.
- Specialty Occupation Requirement: The role must require specialized knowledge (for at least 51% of the job duties), typically necessitating a bachelor’s degree or higher.
- Importance of Business Plans: Startups seeking H-1B sponsorship must have well-structured business plans that comply with guidelines and showcase the founders’ roles in driving innovation and contributing to the economy.
- Increased Opportunities for Global Talent: Aimed at attracting skilled professionals and innovators.
- Limitation of 18 months duration (with an opportunity for an 18 month extension, and then a three year extension).
What This Means for Entrepreneurs
This policy shift is particularly beneficial for entrepreneurs looking to expand into the U.S. market, or to stay in the U.S. after completing college as an international student.
Opportunities for Owners/Beneficiaries
With this rule, immigrant entrepreneurs establishing tech companies in the U.S. can now:
- Apply for an H-1B visa through their own company.
- Bypass the traditional requirement of employer sponsorship.
- Retain control over their business while working legally in the U.S.
According to the Department of Homeland Security (DHS), this new rule is expected to boost job creation, foster innovation, and contribute to economic growth.
Challenges in the Previous System
Before this change, entrepreneurs faced several hurdles:
- Dependence on Employer Sponsorship: Even high-profile entrepreneurs like Elon Musk initially relied on employer sponsorship.
- Limited Pathways for Startup Founders: Founders had to work under an employer before transitioning to their own ventures.
- Long Wait Times for Green Cards: Many applicants face decades-long waits for employment-based green cards, particularly those from India and China.
- Previous rules “permitting” self-sponsored H1B were either too rigid or ambiguous. In a footnote in an FAQ in 2020, USCIS conceded the availability for majority owner to sponsor their own H1B, but only if there were an independent board of directors (not directly or indirectly controlled by the owner) which had the authority to fire the owner/H1B. Not surprisingly, very few people pursued this option.
New H1B Rule Acknowledges and Leverages the Power of Immigrant Entrepreneurship
Let’s give credit where credit is due. USCIS has awakened to the amazing job-creating potential of unleashing immigrant entrepreneurs. As I wrote in my book, Immigrant, Inc., immigrants are disproportionately entrepreneurial. The data suggests the following:
- Immigrants are 2X more likely than American-born to start a business;
- Immigrants are 2X more likely than American-born to own a US patent;
- Immigrants are better equipped to help US companies navigate global markets due to language, culture, and multi-generational relationships abroad
- Immigrants, and their children, have founded 46% of the U.S. Fortune 500
Whew! Immigrants have made America Great — by creating millions of American Jobs for Americans!
I identify with the immigrant mindset. I bet you do too.
In the Proposed H1B Rule that was announced in October, 2023, USCIS waxed poetic on the opportunity in welcoming immigrant entrepreneurs, and the need to open the gates on H1B for founders:
The United States has long been a destination for top talent from all over the world, including for entrepreneurs and innovators. The United States continues to build and expand initiatives to support its evolving workforce with policies such as the passage of the CHIPS and Science Act of 2022, which will foster innovation in many ways, including by reducing the barriers of entry to startups.[137] While the United States prides itself on its ability to attract global talent, there are limited pathways for entrepreneurs to come to the United States under existing regulations. To promote access to H-1Bs for entrepreneurs, start-up entities, and other beneficiary-owned businesses, DHS is proposing to add provisions to specifically address situations where a potential H-1B beneficiary owns a controlling interest in the petitioning entity. If more entrepreneurs are able to obtain H-1B status to develop their business enterprises, the United States could benefit from the creation of jobs, new industries, and new opportunities.[
Beneficiary-Owners: The New Rule Does Away With the Old Rule
The “rules” regarding H1B self-sponsorship have undergone significant transformation over the years.
USCIS first mentioned it in a 2010 memo, stating that it was unlikely that a beneficiary owner could demonstrate an independent employer/employee relationship for purposes of the H1B.
The legal community argued with USCIS, stating that this was not accurate. Under corporate law, the corporation is an independent legal entity, separate from its owners. And therefore, an independent employer/employee relationship should be recognized in the H1B realm.
USCIS partly conceded this issue, to a point. In a footnote to a FAQ, USCIS answered the question this way: Q13: The 2010 memorandum provides an example of when a beneficiary, who is the sole owner of the petitioning company or organization, would not establish a valid employer-employee relationship. Are there any examples of when a beneficiary, who is the sole owner of the petitioning company or organization, may be able to establish a valid employer-employee relationship? A13. Yes. In footnotes 9 and 10 of the 2010 memorandum, USCIS indicates that while a corporation may be a separate legal entity from its stockholders or sole owner, it may be difficult for that corporation to establish the requisite employer-employee relationship with a beneficiary owner for purposes of an H-1B petition. However, if the facts show that the petitioner has the right to control the beneficiary’s employment, then a valid employer-employee relationship may be established. For example, if the petitioner provides evidence that it has a Board of Directors that has the ability to hire, fire, pay, supervise, or otherwise control the beneficiary’s employment, and the beneficiary has no authority to replace the board or otherwise change or overrule the decisions of that board (directly or indirectly), the petitioner may be able to establish an employer-employee relationship with the beneficiary, depending on all other incidents of the relationship evidenced in the record once properly assessed and weighed by USCIS.
Following this announcement, not many individuals felt confident to file a self-sponsored H1B. This was not surprising, for the following reasons:
- USCIS did not issue a regulation to support its claim that self-sponsored H1B are permissible. It only issued a footnote in a FAQ published on its website. Hardly a resounding endorsement, and not much legal support when arguing with a USCIS adjudicating officer.
- The footnote was vague. When it states that there must be an independent board of directors, which is not under the direct or indirect control of the beneficiary-owner, what do the terms “independent,” “direct control,” “indirect control” mean?
In 2020, USCIS was still touting the line that H1B self-sponsorship should not be encouraged.
In 2023, with the proposed H1B rule, the lightbulb at USCIS headquarters was turned on, and the agency began to understand the power of immigrant founders, and started to work on ways to open the H1B gates.
The proposed rule stated their new-found direction to codify, in a regulation (not a footnote in a FAQ), that beneficiary-owned businesses can sponsor the H1B for the owner, AND that an independent board of directors (whatever that is) is no longer required to prove an independent employer/employee relationship. Instead, the new rule requires evidence of a legitimate employer-employee relationship, even for sole business owners. This means that the petitioner must show that a separate board of directors can hire, fire, and supervise the employee, indicating that even sole business owners must demonstrate such governance to meet USCIS requirements:
In the fourth prong of the definition of U.S. employer at 8 CFR 214.2(h)(4)(ii)(ii)), DHS proposes to codify a petitioner’s ability to qualify as a U.S. employer even when the beneficiary possesses a controlling interest in that petitioner. As discussed above, historically, USCIS’s common law analysis of the employer-employee relationship has been an impediment for certain beneficiary-owned businesses to use the H-1B program. While USCIS has not applied the common law analysis of the employer-employee relationship since June 2020, when it rescinded its 2010 policy memorandum,[135] DHS believes that prospective beneficiary-owned businesses may still be reluctant to participate in the H-1B program due to the legacy of its now-rescinded memorandum. Through this proposed change to 8 CFR 214.2(h)(4)(ii)(ii)), DHS seeks to clarify its current policy and encourage more beneficiary-owned businesses to participate in the H-1B program.[136]
What Does the New Rule Say?
The new rule, published in December 2024 does the following:
- Codifies into regulation the official recognition and acceptance of owner-beneficiary H1Bs
- Removes the former requirement of an independent board of directors to establish an employer/employee relationship
- For owner/beneficiary’s who own more than 50% of the company, they are relieved of the full specialty occupation requirements. As long as 51% of their job duties are “specialty occupation” (which means that the industry standard requires at least a bachelor’s degree as a minimum entry requirement), then the remaining 49% of their job duties can fall into the non-specialty occupation category (since founders wear many hats, some of which are not universally recognized as specialty occupations: startup CEO, bookkeeper, officer cleaner, etc.)
- For owner/beneficiary’s who own more than 50% of the company, the initial approval of the H1B will be 18 months (not the normal 36 months). Additionally the first extension is limited to 18 months. The next extension can be 36 months. This limitation is to provide “guardrails” and supervision over the founders.
The following are quotes directly from the new rule and Code of Federal Regulation:
Beneficiary-Owners
In response to commenters’ concerns about the term “controlling interest” in the regulatory text for beneficiary-owners, DHS is clarifying the term by defining it in the regulatory text, rather than only in the preamble. Specifically, DHS is adding to new 8 CFR 214.2(h)(4)(ii) and (h)(9)(iii)(E), that a controlling interest means that the beneficiary owns more than 50 percent of the petitioner or that the beneficiary has majority voting rights in the petitioner…..
United States employer means a person, firm, corporation, contractor, or other association, or organization in the United States that:
(1) Has a bona fide job offer for the beneficiary to work within the United States, which may include telework, remote work, or other off-site work within the United States;
(2) Has a legal presence in the United States and is amenable to service of process in the United States; and
(3) Has an Internal Revenue Service Tax identification number.
(4) If the H-1B beneficiary possesses a controlling interest in the petitioner, meaning the beneficiary owns more than 50 percent of the petitioner or has majority voting rights in the petitioner, such a beneficiary may perform duties that are directly related to owning and directing the petitioner’s business as long as the beneficiary will perform specialty occupation duties a majority of the time, consistent with the terms of the H-1B petition…..
(E) H-1B petition for certain beneficiary-owned entities. The initial approval of a petition filed by a United States employer in which the H-1B beneficiary possesses a controlling interest in the petitioning organization or entity, meaning the beneficiary owns more than 50 percent of the petitioner or has majority voting rights in the petitioner, will be limited to a validity period of up to 18 months. The first extension (including an amended petition with a request for an extension of stay) of such a petition will also be limited to a validity period of up to 18 months.
CAUTION: Increased USCIS Scrutiny on Business Viability
- The U.S. Citizenship and Immigration Services (USCIS) will conduct thorough reviews to prevent fraud.
- Your company must demonstrate:
- Legitimate business activities (e.g., contracts, revenue, office location).
- Ability to pay the prevailing wage set by the Department of Labor (DOL).
- Compliance with state and federal business regulations.
Understanding the H-1B Visa for Entrepreneurs
The H-1B Visa is one of the most sought-after employment-based visas in the United States, designed for foreign professionals with at least a bachelor’s degree or equivalent in a specialized field. Traditionally, the visa requires sponsorship by a U.S. company, but a unique opportunity exists for self-sponsorship, allowing entrepreneurs to establish their own business in the U.S. and sponsor themselves for an H-1B visa.
This category, known as the “H-1B Visa for Entrepreneurs,” allows skilled professionals to launch and operate their own companies while complying with U.S. immigration laws.
Eligibility Requirements for an H-1B Entrepreneur Visa
To qualify as an H-1B entrepreneur, applicants must meet the following criteria:
1. Educational Qualifications
- A four-year bachelor’s degree (or higher) from an accredited institution (U.S. or foreign equivalent).
- If no degree is held, a combination of education and at least 12 years of professional experience in a specialized field may be considered.
- An unrestricted professional license for regulated industries (law, medicine, architecture, etc.), obtained in the country of origin.
2. Specialty Occupation Requirement
The business must operate in a specialty field requiring a highly specialized skillset. It must meet one or more of the following:
- The job requires a degree as a minimum qualification.
- The role is so complex that it necessitates specialized knowledge typically gained through a bachelor’s or higher degree.
- The work involves advanced expertise that cannot be easily performed by someone without formal academic training.
3. Employer-Employee Relationship
The U.S. company must prove that a genuine employer-employee relationship exists, meaning that the company is an independent legal entity, and it has contracted with the owner/beneficiary to provide professional services.
4. Financial Viability
The company must demonstrate the ability to pay the entrepreneur’s salary.
- Businesses with less than $100,000 in assets generally struggle to qualify.
- The company should have a business plan showing revenue projections and growth potential.
How to Apply for an H-1B as an Entrepreneur
Key Requirements for Self-Sponsored H-1B Visa
1. Proper Company Structure
- A sole proprietorship is not allowed for an H-1B petition.
- Your company must be a legally established corporation (C-Corp, S-Corp) or an LLC with a distinct legal identity.
- Having multiple investors or co-founders strengthens the case by demonstrating company legitimacy and oversight.
2. Obtain an Employer Identification Number (EIN) from the IRS.
Set up a business bank account
3. Enter the H-1B Lottery (If Applicable)
- The H-1B visa is subject to an annual cap (65,000 regular + 20,000 for advanced degree holders).
- If selected, the petition is processed, and upon approval, the applicant can apply for a visa stamp at a U.S. consulate.
If you already won the lottery on your own, or if you were counted previously, move on to the next step
4. Legitimate Business Plan and Intent
- Your company must have a valid business purpose beyond just securing an H-1B visa.
- The company should be actively engaged in commercial operations, offering services or products.
- A strong business plan, including financial projections, market analysis, and job creation potential, can help demonstrate credibility.
- Tip: A detailed business plan helps USCIS see that your company has real growth potential and isn’t merely a way to obtain a visa.
5. Establishing a Bona Fide Employer-Employee Relationship
- USCIS requires proof that your company controls your employment and that there is a legitimate employer-employee relationship. This means providing evidence that a separate board of directors can hire, fire, and supervise you, even if you are the sole business owner.
- Employment agreement between you and the company is key. Draft an employment contract specifying salary, duties, and control mechanisms.
- A well-structured organizational chart showing clear oversight can support your case.
6. H-1B Specialty Occupation Criteria
- The role you are being sponsored for must qualify as a specialty occupation.
- This typically requires at least a bachelor’s degree or higher in a specific field relevant to the job.
- The job duties must be complex and require specialized knowledge.
7. Required Proof and Documentation
To support your H-1B petition, USCIS may require the following:
- Company formation documents (Articles of Incorporation, EIN confirmation, Operating Agreement).
- Employment contract outlining your job duties, salary, and supervisory structure.
- Business plan with revenue forecasts and hiring plans.
- Organizational chart showing the management hierarchy.
- Financial statements and tax returns to prove business viability.
- Educational qualifications matching the specialty occupation.
7. Meeting the Prevailing Wage Requirement
- The company must pay you a salary that meets or exceeds the prevailing wage for your job category.
- The wage level is determined by the U.S. Department of Labor (DOL) to prevent wage undercutting.
- You can check the prevailing wage for your occupation on the Foreign Labor Certification Data Center.
8. Secure Funding Without Violating H1B Regulations
Since H1B holders cannot engage in unauthorized employment, they must structure their investments carefully:
- Passive Investment: Allowed (e.g., receiving dividends), but no active management.
- Venture Capital & Angel Investors: External funding can help sustain business growth.
- EB-5 Immigrant Investor Program: Requires a minimum investment of $800,000 and creation of 10 full-time U.S. jobs.
Step 9: File the H-1B Petition
- Submit Form I-129 (Petition for Nonimmigrant Worker) with USCIS.
- Provide Labor Condition Application (LCA) approval from the U.S. Department of Labor.
- Include a detailed business plan, financial statements, and evidence of employer-employee relationship.
Two Ways to Start Your Own Company
- File a New H-1B Petition for Your Own Business
- Create a new company and file an H-1B petition while maintaining your current job.
- Once approved, you can work for both the original employer and your new business.
- Use the H-1B Portability Rule
- You may begin working for your new company as soon as the H-1B transfer petition is filed.
- You must meet the following conditions:
- Currently in valid H-1B status
- Lawfully admitted to the U.S.
- New petition filed before your authorized stay expires
- No unauthorized employment
💡 Tip: Always maintain your original H-1B status until your new petition is approved to avoid any gaps in lawful status.
Rights and Benefits of H-1B Entrepreneurs
Once approved, H-1B entrepreneurs enjoy several benefits:
- 18-month of validity, renewable for an additional 18 months, and then 3 years.
- Spouses and children can accompany the visa holder under H-4 dependent status.
- Allows dual intent, meaning the visa holder can apply for a Green Card.
- Eligible to obtain a Social Security Number (SSN), U.S. driver’s license, and bank accounts.
Challenges and Legal Considerations
Common Issues Leading to Denial:
- Weak business operations: If the company isn’t financially viable or lacks proper structure, the application may fail.
- Insufficient evidence: Not providing necessary documents can lead to rejection.
- Financial constraints make it difficult for small startups to qualify.
- Annual lottery system makes securing an H-1B visa uncertain.
- What Salary Should You Pay Yourself?
- Your salary must meet or exceed the DOL’s prevailing wage for your job role and location.
- Salaries should reflect industry standards while demonstrating the company’s ability to pay.
- Keep payroll records and tax filings updated to avoid compliance issues.
How Will These Changes Impact RFEs and Denials?
- Expect higher scrutiny on self-sponsored petitions.
- RFEs may focus on:
- The employer-employee relationship.
- Financial health of the business.
- Whether the role qualifies as a specialty occupation.
- To minimize risks, work with an experienced immigration attorney and submit comprehensive supporting evidence.
How to Strengthen Your Petition
- Ensure your role requires a specialty degree and aligns with industry norms.
- Have multiple employees or plans for future hiring to show business legitimacy.
- Keep detailed tax and financial records to prove business stability.
Transitioning from H-1B to Permanent Residency
While the H-1B visa is a nonimmigrant status, it allows for dual intent, meaning you can pursue permanent residency. Options include:
- EB-1 Visa: For individuals with extraordinary abilities or outstanding achievements.
- EB-2 Visa: For those with advanced degrees or exceptional abilities, potentially qualifying for a National Interest Waiver.
- EB-5 Visa: For significant investors creating jobs in the U.S.
Consulting with an immigration attorney is advisable to determine the most suitable pathway based on your circumstances.
If Not Sponsoring Your Own H1B, Be Careful of Falling Into Side Hussle Trap That May Violate Your Existing H1B
I receive calls weekly from H1B holders, often working for big companies, asking whether they can own a U.S. company?
The answer is yes, of course, you can own stock in General Motors, or stock in you LLC. But you can’t work for either of them without USCIS authorization.
Can You Start Your Own Business While on an H-1B Visa?
If you’re an H-1B visa holder with dreams of launching your own business in the United States, you’re not alone. Many skilled professionals aspire to transition from employee to entrepreneur. However, due to visa restrictions, starting a company while on an H-1B visa requires careful planning and strategic execution. In this guide, we’ll break down everything you need to know, including work limitations, legal requirements, alternative visa options, and practical steps to successfully launch your startup.
Understanding the H-1B Visa
What is the H-1B Visa?
The H-1B visa is a nonimmigrant visa that allows foreign professionals to work for U.S. companies in specialty occupations, typically requiring a bachelor’s degree or higher. However, this visa is employer-specific, meaning you can only work for the company that sponsors your visa.
Key H-1B Visa Restrictions
- Employer-Specific: Your visa is tied to the company that sponsored you.
- Work Limitations: You cannot engage in active work for another company without proper authorization.
- Renewal and Duration: The visa is initially valid for up to three years and can be extended to a maximum of six years.
- Self-Employment Restriction: You cannot be self-employed but can establish a company under certain conditions.
Can You Start a Business on an H-1B Visa?
Yes, but with limitations. The U.S. Citizenship and Immigration Services (USCIS) prohibits H-1B holders from actively working for their own company unless the business sponsors their H-1B. However, you can legally take steps to set up your company without violating your visa status.
What You Cannot Do:
- Receive a salary from your startup
- Perform hands-on technical work (coding, designing, etc.)
- Manage day-to-day operations
- Hire and directly manage employees
What You Can Do:
- Incorporate your company and obtain an EIN
- Conduct market research and seek investment
- Meet with potential co-founders, clients, and investors
- Create a business strategy and plan
- Own shares in the company as a passive investor
📌 Pro Tip: Always consult an immigration attorney before taking any actions that could jeopardize your visa status.
I am concerned that someday, USCIS headquarters will target H1B professionals, particularly those who have been waiting years and years for EB-priority dates to become current so that they can get their green card, for working illegally on their side hustle.
USCIS sees what we see:
- Immigrants are disproportionately entrepreneurial, hard-working and innovative;
- Immigrants stuck in long EB-5 que will be tempted to start their own entrepreneurial venture on the side, without H1B sponsorship.
As stated earlier, it is fine to own your own company while on H1B. It is not fine to work for your company without authorization.
Passive investment is fine. Day-to-day duties are not.
The million dollar question is: what is work?
In a nutshell, any expenditure of labor where there is normally an expectation of compensation (even deferred) is considered employment.
Volunteering at the soup kitchen on Sunday is not considered unlawful employment.
Working on your startup by communicating with customers and vendors, without USCIS authorization, is unlawful employment.
Understanding Your Limitations and Opportunities on an H1B Visa
If you are on an H1B visa, you are only authorized to work for your sponsoring employer. However, this does not mean you cannot build a business. Here’s what you can and cannot do:
Permitted Activities
✔️ Create and register a business ✔️ Become a principal shareholder with voting rights ✔️ Establish and serve on a Board of Directors ✔️ Attend board meetings ✔️ Conduct market research ✔️ Engage in investment-related activities (pitching to investors, negotiating terms)
Restricted Activities
❌ Work as the CEO or in any executive or managerial capacity ❌ Perform day-to-day operations for the startup ❌ Directly manage employees, hire or fire staff
Solution: To ensure compliance, partner with a U.S. citizen or permanent resident who can manage daily operations while you contribute at a strategic level.
Here are some resources to review:
Advisory Against Unauthorized Employment
https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-6
Alternative Visa Options for Entrepreneurs
If the H-1B self-sponsorship route isn’t viable, here are alternative visa options:
1. E-2 Visa (Investor Visa)
- Available to citizens of treaty countries.
- Requires a substantial investment in a U.S. business.
- Renewable indefinitely, but does not lead directly to a Green Card.
- Learn more about the E-2 Visa.
2. O-1 Visa (Extraordinary Ability Visa)
- Suitable for highly accomplished entrepreneurs, scientists, artists, and business leaders.
- Requires proof of extraordinary achievements (awards, publications, media recognition, etc.).
- No annual cap, allowing more flexibility.
- Learn more about the O-1 Visa.
- USCIS rules in 2025 now permit owner/beneficiary O-1 petitions.
3. L-1 Visa (Intra-Company Transfer Visa)
- Best for entrepreneurs who own a foreign company and wish to expand into the U.S.
- Requires the transfer of an executive, manager, or specialized knowledge employee.
- Learn more about the L-1 Visa.
4. EB-5 Immigrant Investor Program
For those not from treaty countries, theEB-5 visa offers a pathway by investing a significant amount in a U.S. business, leading to potential green card eligibility. This option requires substantial capital, making it suitable for individuals with considerable financial resources.
5. EB-2 National Interest Waiver (NIW)
- If your work is in the U.S. national interest, you may self-petition for a green card.
- More details: EB-2 NIW Overview
6. International Entrepreneur Rule (IER)
- Must own at least 10% initially, and 5% at renewal.
- Business must show potential for rapid growth and job creation.
- Valid for up to 30 months, renewable once.
Threshold criteria and key elements of the International Entrepreneur Rule include:
· Entrepreneurs may be either living abroad or already in the United States.
· Startup entities must have been formed in the United States within the past five years.
· Startup entities must show substantial potential for rapid growth and job creation by showing at least $311,071 in qualified investments from qualifying investors, at least $124,429 in qualified government awards or grants, or alternative evidence.
· The spouse of the entrepreneur may apply for employment authorization after being paroled into the United States. (Children are not eligible for employment authorization.)
· The entrepreneur may be granted an initial parole period of up to 2.5 years. If approved for re-parole, based on additional benchmarks in funding, job creation, or revenue described below, the entrepreneur may receive up to another 2.5 years, for a maximum of 5 years. (At that point or earlier, there are other Options for Alien Entrepreneurs to Work in the United States.)
· Up to 3 entrepreneurs per startup can be eligible for parole under the International Entrepreneur Rule.
What Does USCIS Say about Immigrant Entrepreneur Pathways (non-immigrant and immigrant)?
On its website, USCIS outlines its policies and programs welcoming immigrant entrepreneurs on temporary work visas and green card.
Here we go!
Options for Alien Entrepreneurs to Work in the United States
Introduction
The United States has long been a hub for innovation, attracting entrepreneurs from around the world. The influx of talented individuals has played a crucial role in job creation, industry advancement, and economic growth.
For international entrepreneurs looking to establish or manage a business in the U.S., multiple temporary and permanent pathways are available. This guide provides a detailed overview of visa options, requirements, and key considerations for foreign entrepreneurs.
For additional details, visit USCIS.gov for comprehensive information on temporary and permanent visa options, the International Entrepreneur Rule (IER), and Optional Practical Training (OPT) for F-1 students.
Key Considerations When Choosing an Entrepreneurial Pathway
Before selecting a visa, entrepreneurs should evaluate the following factors:
1. Investment or Ownership Requirements
Some visa categories require a financial investment or ownership interest in the business.
- Required: International Entrepreneur Rule (IER), E-2 Treaty Investor, EB-5 Immigrant Investor.
- Not Required: H-1B Specialty Occupation, O-1A Extraordinary Ability.
2. Required Role in the Start-Up
Your role in the business may impact your eligibility. For example:
- Active Operational Role: IER, E-2, L-1A.
- Specialized Work: H-1B, O-1A, EB-1A (Extraordinary Ability).
- Management or Ownership Not Required: H-1B, F-1 OPT.
3. Business Structure Requirements
Some visas have specific requirements for the business entity.
- Must be a Start-Up: IER.
- Must Have a Foreign Parent or Affiliate: L-1A.
- Must Meet National Interest Criteria: EB-2 NIW.
4. Education, Skills, and Experience
Different pathways require varying levels of expertise:
- Extraordinary Ability Required: O-1A, EB-1A.
- Degree Requirement: H-1B (minimum bachelor’s degree).
- No Formal Education Requirement: E-2, EB-5 (Investment-Based Visas).
5. Temporary vs. Permanent Status
Entrepreneurs must decide if they seek:
- Temporary Work Authorization: IER, E-2, L-1A, H-1B, O-1A.
- Pathway to Permanent Residency (Green Card): EB-1A, EB-2 NIW, EB-5.
Temporary (Nonimmigrant) Visa Pathways
1. International Entrepreneur Rule (IER)
- Must own at least 10% initially, and 5% at renewal.
- Business must show potential for rapid growth and job creation.
- Valid for up to 30 months, renewable once.
2. B-1 Temporary Business Visitor
- Suitable for securing funding, negotiations, or office space.
- Cannot work for or operate a U.S. business.
- Valid for up to six months (extendable).
3. E-2 Treaty Investor Visa
- Requires substantial capital investment in a U.S. business.
- Must own at least 50% or have operational control.
- Renewable indefinitely as long as investment remains active.
4. F-1 OPT (Optional Practical Training)
- STEM graduates can qualify for a 24-month extension.
- Start-up must be an E-Verify employer.
- Work must relate directly to the entrepreneur’s field of study.
5. H-1B Specialty Occupation Visa
- Requires a bachelor’s degree in a specialty field.
- Business must file as an employer, not just an owner.
- Valid for three years, extendable up to six years.
6. L-1A Intracompany Transferee
- Requires a qualifying relationship with a foreign business.
- The U.S. office must support an executive or managerial role.
- Valid for one year initially, extendable up to seven years.
7. O-1A Extraordinary Ability Visa
- Reserved for individuals with extraordinary ability.
- Entrepreneur must have national/international recognition.
- No maximum duration; can be renewed indefinitely.
Permanent (Immigrant) Visa Pathways
1. EB-1A (Extraordinary Ability)
- No employer sponsorship required.
- Must demonstrate sustained national or international acclaim.
- Provides a direct pathway to a Green Card.
2. EB-2 NIW (National Interest Waiver)
- No job offer or labor certification required if a national interest waiver is granted.
- Must show that the start-up provides substantial merit and national importance.
- Requires exceptional ability or an advanced degree.
3. EB-5 Immigrant Investor Program
- Requires investment of $1.05M ($800K in Targeted Employment Areas).
- Must create at least 10 jobs.
- Pathway to U.S. permanent residency.
Comparison of Entrepreneur Visa Options
|
Visa Type |
Investment Required |
Ownership Required |
Pathway to Green Card? |
Initial Validity |
Renewable? |
| IER | No | Yes (5-10%) | No | 30 months | Once (30 months) |
| B-1 | No | No | No | Up to 6 months | Case-by-case |
| E-2 | Yes | Yes (50%) | No | 2 years | Indefinitely |
| F-1 OPT | No | No | No | 12-36 months | No |
| H-1B | No | No | Yes (Limited cases) | 3 years | 3-year extension |
| L-1A | No | No | Yes | 1 year | Up to 7 years |
| O-1A | No | No | Yes | 3 years | 1-year extensions |
| EB-1A | No | No | Yes | N/A | N/A |
| EB-2 NIW | No | No | Yes | N/A | N/A |
| EB-5 | Yes ($1.05M/$800K) | No | Yes | N/A | N/A |
Entrepreneurs seeking to work in the U.S. have multiple visa options, each with specific requirements. Whether you are investing, managing a company, or demonstrating extraordinary ability, there is a pathway suited to your needs.
For official immigration guidance, visit:
If you need assistance determining the best visa, consider consulting an immigration attorney for personalized advice.
FAQs on the New H-1B Rule Permitting Owner/Beneficiary-Sponsored H-1B Petitions
The recent changes to the H-1B visa program now allow owner/beneficiaries to sponsor themselves under specific conditions. This new rule has sparked significant interest among entrepreneurs, startups, and foreign professionals seeking employment in the U.S.
GENERAL FAQs
1. What is the new H-1B rule regarding owner/beneficiary sponsorship?
The new H-1B rule allows foreign nationals who own a U.S. company to sponsor themselves for an H-1B visa, provided they meet the same criteria as other H-1B applicants, including specialty occupation requirements and employer-employee relationship rules.
2. When does this new rule go into effect?
The rule is expected to be implemented in 2024. Applicants should check with USCIS for specific dates and updated guidance.
3. Can a sole proprietor sponsor themselves for an H-1B visa?
No. A sole proprietorship does not establish the necessary employer-employee relationship because the individual and the business are legally the same entity.
4. What kind of business structure is required to self-sponsor under H-1B?
A foreign entrepreneur should establish a C-corporation or Limited Liability Company (LLC) with a valid Employer Identification Number (EIN) and a legitimate structure that ensures a separation between the petitioner and the employee (i.e., the H-1B beneficiary).
OWNERSHIP, STRUCTURE & COMPLIANCE
7. Can I sponsor myself if I own 100% of the company?
Yes.
8. What documents do I need to prove a valid employer-employee relationship?
- Articles of incorporation
- Employment agreement
- Payroll records showing salary compliance
- Bylaws/Board meeting minutes/other formalities of corporate governance
- Business plan and financial documents
9. Can an LLC be used for an H-1B self-sponsorship?
Yes, but the company should have a detailed employment contract with the owner/beneficiary.
10. Do I need to hire additional employees to qualify for the H-1B?
While there is no explicit requirement, a multi-employee structure strengthens the case by demonstrating that the business is a legitimate employer and not a sole proprietorship in disguise.
H-1B REGISTRATION, LOTTERY, AND PROCESSING
11. Do owner-sponsored H-1B petitions go through the regular lottery process?
Yes. Even if you are self-sponsoring, your application will still be subject to the H-1B lottery system unless you qualify for an H-1B cap-exempt status.
12. Can my company file multiple H-1B registrations for me?
No. Each individual can only have one registration per company. However, if you have legitimate offers from different, unrelated companies, they can each submit separate registrations on your behalf.
13. Can I apply under the cap-exempt category if I own a company?
Only if your company is affiliated with a nonprofit research institution, university, or a government research entity that meets the H-1B cap-exempt criteria.
14. Does the new rule make H-1B petitions easier for startup founders?
Yes. But with a caveat. The burden of proof remains high for demonstrating that the business is viable and that the owner is a legitimate employee rather than just a petitioner.
MAINTAINING STATUS & WORK AUTHORIZATION
15. How long can I stay on an H-1B visa if I am self-sponsored?
H-1B visas are initially granted for up to 18 months, with an option for renewal for an additional 18 months, and then 3 years (total of six years).
16. Can I work for other companies while on an H-1B self-sponsored visa?
No. You can only work for the petitioning employer (i.e., the company you own). However, you may file for concurrent H-1B petitions with other employers.
17. Can I apply for a green card while on an H-1B visa through my own company?
Yes. The EB-2 National Interest Waiver (NIW) or EB-1C Multinational Executive green card categories may be good options for self-sponsored green card applicants.
18. What happens if my company fails or I shut it down?
If your business ceases operations, you must find a new H-1B sponsor or leave the U.S. within the grace period (usually 60 days).
19. Can I use my H-1B status to sponsor other employees for H-1B visas?
Yes. Your company can sponsor other employees if it meets financial and operational eligibility criteria.
SALARY & FINANCIAL REQUIREMENTS
20. What salary do I need to pay myself under an H-1B self-sponsorship?
You must pay yourself at least the prevailing wage for the job position in the location of employment, as determined by the Department of Labor (DOL).
21. Can I pay myself in equity instead of salary?
No. H-1B holders must receive a regular salary that meets the prevailing wage and cannot be compensated solely in stock, options, or other non-monetary benefits.
22. How do I show my company has enough funds to pay my salary?
USCIS may require:
- Bank statements showing sufficient funds
- Tax returns and financial records
- Investment/funding documentation (if applicable)
- Client contracts or revenue projections
23. Can I get a loan to fund my H-1B company and salary?
Yes, but the business must generate its own revenue and not rely solely on a loan for payroll. Demonstrating sustainable business operations is key.
LESS COMMON QUESTIONS & SPECIAL CASES
24. Can I change from F-1 OPT to an H-1B self-sponsored visa?
Yes, if your company meets all the eligibility criteria and successfully files an H-1B petition on your behalf.
26. What happens if I lose my H-1B status?
You have a 60-day grace period to find a new H-1B sponsor, change status, or leave the U.S.
27. Can I work remotely for my own company from outside the U.S.?
Yes, but an H-1B visa is only needed if you physically work inside the U.S.
1. Can an H1B visa holder own 100% of a startup in the U.S.?
Yes, but they cannot actively manage it unless they establish an employer-employee relationship or change their visa status.
2. What is the best business structure for an H1B startup founder?
Any corporate structure is permissible.
3. Can an H1B visa holder apply for an EB-5 visa?
Yes, if they invest at least $800,000 and create 10+ full-time jobs for U.S. workers, they may qualify for the EB-5 Immigrant Investor Program.
4. What are the new USCIS rules for H1B startup founders?
The USCIS now allows H1B holders to self-sponsor their visa through their own company, provided they demonstrate an employer-employee relationship.
5. Can an H1B visa holder apply for funding for their startup?
Yes, but they must not actively manage the company unless they meet H1B employment requirements.
H1B Owner/Beneficiary: Conclusion
Self-sponsorship through your own company for an H-1B visa is possible but requires meeting strict USCIS criteria. A well-structured business, a specialty occupation, and proper documentation are key factors in your success.
If you’re considering this route, start planning early, seek legal advice, and ensure compliance with U.S. immigration laws.
The H-1B self-sponsorship route offers a unique opportunity for entrepreneurs and international students to control their own employment future. However, due to the increased scrutiny in 2025, applicants must ensure strict compliance with USCIS regulations.
By following the steps outlined above and working with an immigration expert, you can successfully navigate this complex process and build a sustainable business in the U.S.
Pro Tips for Success
✅ Work with an immigration attorney to structure the business properly. ✅ Ensure strong financial backing and a detailed business plan. ✅ Consider alternative visas if the H-1B route is uncertain.
For more information, visit the
Additional Resources
- 🔗 H-1B Prevailing Wage Database – Check the required salary for your job title.
- 🔗 USCIS H-1B Official Page – Stay updated on regulations.
- 🔗 Incorporate Your Business in the U.S. – Learn about legal business structures.
- USCIS H-1B Visa Page
- International Entrepreneur Rule: Offers parole opportunities for entrepreneurs. Learn more.
- H-1B Electronic Registration Process: Understand the registration requirements and timelines. Read here.
- H-1B Employer Guide
