H-1B Visa When You Are Self-Employed or Have an Ownership Interest

Architect working at homeAn H-1B visa is a non-immigrant visa that permits a company to hire workers in specialty occupations. H-1B visas require that the foreign worker (the beneficiary) has a bachelor’s degree, and that the U.S. company (the Petitioner) can employ the worker for up to six years.

Sometimes it can be unclear whether or not individuals who own businesses and are self-employed can have their company sponsor them to obtain an H-1B visa. USCIS requires that in cases where the H-1B beneficiary is self-employed or has an ownership interest in the petitioning entity, the application must demonstrate that the petitioning entity is distinct from the beneficiary and that there is an employer-employee relationship that is controlled by the entity (and not by the individual).

Therefore, it is very important to clearly document the employer-employee relationship. The various types of evidence that can be used to establish this are:

  • An employment contract or agreement between the employer and the individual, detailing the terms and conditions of employment;
  • A separate board that has control over hiring and firing decisions;
  • An offer letter that describes the nature of the employer-employee relationship between the petitioner and the foreign beneficiary, as well as the services the foreign national will perform;
  • Employment contracts between the petitioning employer and its client that show the petitioner will have the right to control its employees that are placed at a client site and the supervisory relationship between the employer and the individual;
  • Board resolutions and articles/certificates of incorporation that describe the relationship between the board, company and employee;
  • Company bylaws showing power of management and the board;
  • Shareholder and or operating agreements showing the nature of the relationship between the parties;
  • A description of the performance review process;
  • A copy of the petitioner’s organizational chart showing the chain of supervisors; and/or
  • Other indicators that the employer can terminate the individual.

Here at Berardi Immigration Law, we file dozens of H-1B applications each year. If you are considering sponsoring an employee for an H-1B visa, please contact our office to schedule a consultation with one of our attorneys today!

Write a Reply or Comment