Can Your Company Sponsor Its Founder for an H-1B? The Ownership and Governance Audit

Written October 15, 2026. Reviewed by Rosanna Berardi, Esq.

TLDR:

• Since January 17, 2025, H-1B rules have expressly allowed a company to sponsor a founder who possesses a controlling interest in the business, and such “beneficiary -owners” no longer need to show the petitioning company has a right to control the beneficiary’s work.
• The H-1B petition rises and falls on the offered role, how ownership and voting are structured, whether the company can support the position, and how the founder spends their time.

Founders should audit their corporate documents and operating practices with immigration counsel before those documents are locked in with investors, boards, and corporate lawyers. “Is my company, and my role in it, structured in a way that holds up?” That is a governance question as much as an immigration one, and it is far easier to flesh out these answers before your corporate documents are signed than after.

What did the Modernization of H-1B Requirements Actually Change for Founders?

The Department of Homeland Security’s H-1B modernization rule took effect on January 17, 2025. For controlling business owners, three changes matter most.

1. The “employer-employee relationship” language is gone. The old definition of a U.S. employer turned on the ability to hire, pay, fire, supervise, or otherwise control the U.S. worker. The new rule removed that language and replaced it with a requirement that the petitioner have a “bona fide job offer” for the beneficiary to work in the U.S., as well as a legal presence and amenability to service of process in the U.S. In plain terms: the government wants to see the foreign national has a real job offer to work at a real company, not a manufactured chain of command.
2. Owners with a “controlling interest” are expressly covered. A beneficiary has a controlling interest when they own more than 50 percent of the petitioning company or hold majority voting rights. Founders in that position can be H-1B beneficiaries of their own company, and may perform duties related to owning and directing the business, as long as they spend the majority of their time performing the specialty occupation duties described in the petition.
3. Approvals come in shorter increments. For controlling-owners, the initial petition and the first extension are each limited to a maximum of 18 months, rather than the standard three years. Later extensions can return to the normal validity period if the company and controlling-owner remain eligible. That means a founder will face USCIS review more often in the early years, and the company should be ready to show real progress for the business in each petition.

Owning the Company Is Not the Same as Being Authorized to Work for It

This is the distinction that trips up many founders. Equity gives you ownership rights. A U.S. work permit, like an H-1B approval, grants you permission to perform a specific job for a specific employer.

H-1B holders should keep in mind:

• Your work is limited to the sponsored position. If the H-1B petition describes you as a machine learning engineer who spends a majority of time on model development, that is the role USCIS has authorized you to perform in the U.S. Drifting into a full-time CEO role focused on fundraising and sales can create a mismatch between your petition and your actual work. Performing duties outside of your previously approved H-1B petition can lead to a violation of your status. A significant shift in duties, worksite, or wage may require the company to file an amended petition before such change(s) can take effect.
• Other ventures need their own analysis. Passive ownership in another business is generally fine. Activity such as actively working for a second company you own, consulting on the side, or taking on an operational role elsewhere requires separate work authorization, such as a concurrent H-1B petition from another U.S. employer.

Sponsoring a Founder for an H-1B: Three Questions

Before a company registers its founder in the H-1B selection process, these three questions are worth answering honestly.

1. Is your actual role a “specialty occupation” for H-1B purposes?

The H-1B category is for positions that require at least a bachelor’s degree, or its equivalent, in a specific specialty. Therefore, a role that primarily involves general management activities related to owning or directing a business would not be considered a “specialty occupation” for H-1B purposes. However, if, for example, the founder of a tech company spends a majority (more than 50%) of their time performing technical development duties in addition to their duties related to owning and directing the business, this role may be considered a specialty occupation for H-1B purposes. Keep in mind the founder must be able to show they possess at least a bachelor’s degree, or its equivalent, related to their specialty occupation duties.

2. How is ownership and voting structured?

A beneficiary-owner for H-1B purposes possesses a controlling interest in the company. As such, you should map your ownership and voting rights up front, including any arrangements that could shift them. Convertible notes, SAFEs, option pools, and new funding rounds can move a founder above or below the 50 percent threshold, which changes which H-1B rules apply. Voting agreements and preferred-stock control provisions matter, too, since majority voting rights alone can create a controlling interest. Your immigration strategy and your cap table should be telling the same story.

3. Can the company sustain the position?

The company must pay at least the required wage for the offered role. The required wage depends on the job duties and geographic location of the position. USCIS will also look for evidence that the business is real and operating. Such considerations should be assessed up front to avoid problems down the line.

Thinking Ahead: Process and Timeline

Unless the foreign national was already selected in the H-1B lottery, or the sponsoring employer qualifies as cap-exempt, a founder will still be subject to the H-1B annual cap. The federal government caps the number of new H-1B visas to 85,000 each year, with 20,000 visas reserved for individuals with a U.S. master’s degree or higher and the remaining 65,000 available for general applicants. For the company to file an H-1B petition on behalf of the foreign national, the foreign national must be both registered and selected in the H-1B lottery, which takes place once a year in March. If selected, the company has a 90-day window in which it may file an H-1B petition. Upon approval, the foreign national may begin work as early as October 1^st of that same year. Therefore, thoughtful planning is crucial for these types of petitions.

When Another Visa Fits the Founder Better

Sometimes the honest answer from the audit is that the H-1B is the wrong tool. If your intended role is primarily executive, such as leading strategy, raising capital, and directing the company, another category may align more naturally:

• E-2 Treaty Investor: For nationals of treaty countries who have made a substantial investment in a U.S. business and will develop and direct it. There is no lottery, and directing and developing the business is the point.
• L-1A Intracompany Transferee: For executives or managers of a qualifying foreign company opening or expanding a related U.S. operation.
• O-1A Extraordinary Ability: For founders with sustained recognition in their field, which can accommodate a broader leadership role.

Each has its own requirements and trade-offs, and many founders use one category now while building toward another, or toward a green card, later.

Bring Immigration Counsel to the Governance Table Early

The best founder H-1B cases are built before corporate documents are filed. The documents your company signs during formation and fundraising, and the way you actually spend your days, become the evidence USCIS will review every 18 months. Aligning them early is far easier than explaining a mismatch later.

At Berardi Immigration Law, we work alongside founders, boards, investors, and corporate counsel to evaluate whether the H-1B fits, structure the case with confidence, or identify a better path. Nobody should navigate immigration alone. If you’re weighing a founder petition, contact our team to schedule a consultation.

FAQs

Q: Can I sponsor myself for an H-1B through my own company?

Your company, not you personally, is the petitioner, but yes, a company can sponsor a founder who owns a controlling interest in it. The founder must fill a genuine specialty occupation role, receive the required wage, and spend most of their time on specialty occupation duties. The initial approval and first extension are each limited to 18 months.

Q: Does my board need the power to fire me?

Not anymore. The 2025 rule removed the employer-employee relationship language that founders once tried to satisfy through board oversight and control. In cases where the beneficiary possesses a controlling interest in the company, the focus now is whether there is a bona fide job offer from a legitimate U.S. company.

Q: Is the H-1B the best visa for a startup founder?

It depends on your role. The H-1B works best for founders whose day-to-day work primarily involves the theoretical and practical application of a body of highly specialized knowledge, as opposed to general management or executive duties. A founder whose role is mainly executive, or requires general managerial oversight, may be better served by an E-2, L-1A, or O-1A visa, and an attorney can help compare the options.