H-1B Visa for Entrepreneurs

You may be wondering if it possible to set up your own company then have that company sponsor your H-1B Visa. It is possible and it is known as an Entrepreneurs H-1B visa

USCIS will approve an Entrepreneurs H-1B visa if the following conditions are met:

There must be a bona fide employer-employee relationship between the sponsoring U.S. employer company and the foreign national beneficiary worker.

How do you prove the employer-employee relationship in an Entrepreneur H-1B visa Case?

The details of the employer-employee relationship are spelled out in the petitioner letter to USCIS and in the supporting documentation. The employer-employee relationship is the right of the employer to hire, fire, pay, supervise or otherwise control the terms and conditions of the H-1B worker’s employment.

In the letter the petitioner letter to USCIS the employer details who will direct and supervise the H-1B employee.

Supporting documentation should include the performance review process and a copy of the organization chart showing supervision of the H-1B employee.

How do I prove the employer-employee relationship if I’m the only employee?

You can do this by having the board of directors act as the employer. The supporting documentation would include minutes from a corporate board meeting that state that the board of directors will supervise the employment of the employee. In addition, the following applicable supporting corporate documents should be submitted with the H-1B USCIS filing to demonstrate the distinction between your ownership interest and the board of directors right to control your employment:

Term Sheet

Capitalization Table

Stock purchase Agreement

Investor rights Agreement

Voting Agreement

Organizational documents and operating agreements

The H-1B employee must work in a specialty occupation position.

A specialty occupation position must meet 1 of the following requirements:

A bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for the particular position;

The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor’s degree in a field related to the position;

The employer normally requires a degree or its equivalent for the position; or

The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

You may prove that the position is a specialty occupation position by submitting:

Copies of past position announcements, if relevant, that reflect the minimum requirements for the position and which show that your company normally requires a degree for the position.  Your position is so specialized or complex it can only be performed by someone with a degree, including a detailed description of the petitioner’s business/products/services and the duties of the position.

A detailed description of the petitioner’s business/products/services and the duties of the position, along with written opinions from experts confirming that your position is so specialized or complex it can only be performed by someone with a degree (in a related field).

Job listings, letters and/or affidavits from other employers reflecting the minimum requirements for the position and which shows that the degree requirement is common to the industry in parallel positions among similar organizations.

Written opinions from experts in the field explaining how the degree is related to the role you will perform.

The H-1B position must be in a specialty occupation related to your field of study.

Documentation to submit to show that the position is related to your degree includes:

A detailed explanation of the specific duties of the position, the product or service your company provides, or the complex nature of the role you will perform, and how your degree relates to the role.

Written opinions from experts in the field explaining how the degree is related to the role you will perform.

Printouts from online resources describing the degree fields normally associated with the occupation.

Evidence that similar companies in your industry require similar degrees for similar positions.

The salary paid by the employer must at least the prevailing wage for your occupation.

The prevailing wage database is here: http://www.flcdatacenter.com/OesWizardStart.aspx

The employer submits the certified signed and dated LCA as an attestation that they agree to pay a salary that is equal to or above the prevailing wage.

Here is one example of how the H-1B Visa for Entrepreneurs works:

Rajiv is currently working for KPMG as a CPA. He wants to start his own accounting firm. Here are the steps he takes:

Rajiv incorporates his firm as Rajiv Accountants, Inc. Rajiv owns 80% of the shares of the corporation. The remaining shares are distributed to the board of directors.

Rajiv funds the business with $50,000 from his savings and opens a business checking account.

Rajiv recruits a board of directors.

At a board meeting the board of directors may update the articles of incorporation and/or bylaws of the corporation to document the employer / employee relationship. For voting purposes, a corporation with more than one director should keep an odd number (3, 5, 7, etc.) of directors on its board.

Rajiv lines up potential clients for when the H-1B visa is approved.

Rajiv plans to continue to work for KPMG as a CPA in H-1B status and work for Rajiv Accountants, Inc. on a part time basis in H-1B status after the Rajiv Accountants, Inc. H-1B visa is approved.

Rajiv and the Rajiv Accountants, Inc. board file the concurrent H-1B visa petition with USCIS.

USCIS approves the H-1B visa petition filed by Rajiv Accountants, Inc.

Rajiv may now begin work part time in H-1B status with Rajiv Accountants, Inc. He contacts his potential clients and begins working. The board of directors oversees his work and pays Rajiv according to the terms of the LCA.

If you have a general question about the H-1B visa please complete and submit the form below and we will do our best to answer it.

You can also follow us on facebook as we usually post the answers there.

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Related Links:
H1B Visa Cap / Quota for FY 2018
H-1B Visa Renewal / Extension
H-1B Visa Transfer
Amended H-1B Visa
New H-1B Visa, Cap Exempt
H-1B Visa for Entrepreneurs
H-1B Visa for Teachers
H-1B Visa Attorney Fee
H-1B Visa Complete Do it Yourself Kit

 

 

 

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