H-1B Visa for Entrepreneurs

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The H1B visa is among the most sought after popular employment visas in the US. The visa is given to foreigners who have a bachelor’s degree or an equivalent qualification who want to go to the US to provide services in a certain specialty occupation. These are occupations that require one to have a bachelor’s degree.  The H1B visa also requires one to be sponsored by a U.S company. However, the USCIS does accept H1B petitions that are filled by a U.S firm that was formed and owned by the visa beneficiary. This subcategory of the H1B visa is referred to as H-1B visa for entrepreneurs. For one to be approved and be given the visa, one needs to prove that a relationship exists between the beneficiary and the U.S firm.

Why the H-1B Visa

The Obama administration in 2011 reinterpreted the then immigration laws allowing for immigrants to live in the U.S after obtaining an H-1B visa. The purpose of this kind of visa was to bring in highly skilled people from around the world to help the U.S economy to grow and also enhance job creation. Today, the immigrant’s laws authorize participants to obtain H-1B visas if they are entrepreneurs who have a majority or 100% ownership of a U.S business. The visa can also be given to a sole employee if the beneficiary can demonstrate the employer-employee relationship. Lawyers, architects, engineers, physicians among other professionals can use the H-1B visa to come to the U.S and start their own businesses.

Requirements for H-1B Visa Beneficiaries

To protect U.S employed workers from being affected by the employment of the non-immigrant and to protect the non-immigrant worker as well, the law has set up some standards. Some of them are the requirements one needs to meet to be eligible for the H-1B entrepreneur visa. They include:

  • Possess a four-year bachelor’s degree or higher qualification from a credited university or college
  • Possess an unrestricted license and a full certification that authorizes the person to exercise the job in the country where he or she comes from
  • Obtain equivalent academic certification from another organization in the US for workers and professionals who do not have a degree but have at least 12 years of experience in a specialized field.

The employment must also be a specialty occupation, and it must meet the below standards:

  • The job is unique or very complex such that it can only be done by someone with a bachelor’s degree
  • The minimum requirement for the work is a bachelor’s degree or something similar
  • The work nature is specific and complex that for one to gain the knowledge required in the profession, they would have to acquire a bachelor’s or higher degree.
  • The person should have a specialty position in the firm that requires the use of the degree.
  • The firm that has a relationship with the beneficiary should be able to pay the salary of the beneficiary comfortably. The firm’s assets should also be more than $150,000.

The establishment of the employee-employer relationship has always been difficult to establish. However, there have been recent statements by USCIS defining the needed documentation for the named relationship. More recently USCIS came up with a portal to distinguish the documentation required to prove employer-employee relationship for startups. The USCIS will allow sole-employees to get the visa if they are under the employer-employee relationship if the beneficiary proves that a board of directors exists which can fire, hire, supervise, and pay and control the employment of the beneficiary. Meaning that if there is a separate party controlling the firm the beneficiary has a chance of getting the visa. Some employees in such a scenario that are seeking for the H-1B visa will have to provide documentation proving the existence of:

  • Shareholders
  • Investors
  • Terms and conditions of employment.

However, entrepreneurs seeking these visas are still faced with challenges. For instance, applicants who already have a business running in the US and was not given the H1B visa or was not EAD approved may have their business termed as unauthorized employment.

Options For Those Seeking Permanent Residency In The U.S

The H-1B visa is a non-immigrant visa which provides for dual-intent. This means that a person in the U.S due to the visa can lawfully seek to get permanent residence or a green card while still in the H-1B status and eventually become a U.S Citizen. H-IB applicants may file for PERM labor certification sponsorship. However, it can be hard to get this sponsorship through the department of labor since the applicant has an ownership interest in the sponsoring firm. If it is the wish of the applicant to stay in the U.S permanently, they can seek for other visa options including:

  • EB-1A green card for the extraordinary abilities
  • EB-2 green card that has a national interest waiver if the applicant can prove that their occupation is in the best interest of the country.
  • EB-5 for investors

Such green cards do not need a PERM or a sponsoring employer.

If you are an immigrant in the U.S and your visa or business is on the line, it is best to fulfill all the required laws on immigration. If you do not want to encounter any delays in your H-1B petition, hire an immigration lawyer from Toppins Law Firm to handle your case.

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