After last years Neufeld Memo restricted individuals from self-sponsoring H1B Visa, because it would be not possible to prove employer-employee relationship when owner is the employee and employer of the company.
USCIS have updated their policy and now it maybe possible for individuals have have ownership stake with the company to sponsor H1B for themselves. But, the corporation have to be structured in specific manner.
Here is the section from FAQ’s from USCIS
Q: The memorandum provides an example of when a beneficiary, who is the sole owner of the petitioner, would not establish a valid employer-employee relationship. Are there any examples of when a beneficiary, who is the sole owner of the petitioner, may be able to establish a valid employer-employee relationship?
A. Yes. In footnotes 9 and 10 of the 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 for purposes of an H-1B petition. However, if the facts show that there is a right to control by the petitioner over the employment of the beneficiary, then a valid employer-employee relationship may be established.
For example, if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary, the petitioner may be able to establish an employer-employee relationship with the beneficiary.
Board and Right to Control
Let me try to explain according to my understanding or interpretation of above statement.
Individual business owner on H1B could work for their own company and self-sponsor H1B, provided that they work full time for the company and are treated like an employee.
That’s where the concept of board comes into play.
For example, the company could have a board that is able to hire, fire, pay, supervise or otherwise control the worker like they would any other staff member.
Now, the question is how can an individual with his own company give responsibility to a board to hire or fire him?
I can think of one way that can be done
- Individual starting a company based on VC or Angel Investor funding. And corporation is structures where where board can have control.
Greg Siskind (Immigration Attorney) says this new initiative will not help much because of how its structures
I was hoping for a real reversal. But USCIS is still hung up on a notion of “control” that is precisely opposite of entrepreneurship. Entrepreneurs want to be the boss, not the bossed, and the new H-1B memo only solidifies USCIS’ wrong-headed thinking.
And good luck getting USCIS examiners to view the memo in the spirit it is offered. Expect to be challenged that the job creation is not “national” enough or expansive enough.
Its not easy to find funding and all small business doesn’t require funding or capital to start with. So, I’m not sure how many H1B workers will be get benefit from this initiative.