The H-1B is an excellent opportunity for start-up founders and entrepreneurs to come to the United States and run their own business. While the process is complicated, it’s possible to achieve. Read this guide to learn all about the process, including requirements, how to “self petition”, and step-by-step instructions to apply for the H-1B as a business owner.
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Is It Possible To Self-petition for An H-1 B?
No, you cannot technically “self-petition” for an H-1B visa. The H-1B always requires a U.S. employer (the petitioner) to file on behalf of an employee (the beneficiary). That being said, a U.S. company that you have 100% ownership of can petition on your behalf.
The solution is to be both an owner and an employee:
- First, you must form a separate legal entity in the U.S., like a C-Corporation or an LLC. This company is now the “U.S. employer.”
- Next, your company hires you for a specific, specialty occupation role. This relationship is formalized with an employment contract, corporate bylaws, and proof that the company can pay you the required wage.
So, while you are the owner, the H-1B petition is filed by your company on your behalf.
H-1B Requirements for Start-up Founders and Entrepreneurs
For start-up founders and entrepreneurs to qualify for an H-1B, they must:
- Establish a Bona Fide Job Offer from Your Company: The primary requirement is proving your start-up is a legitimate employer that has a real job for you. This can be proved with documents like a formal employment contract, corporate bylaws, and a certified Labor Condition Application (LCA). A Board of Directors is helpful but no longer essential.
- Qualify for the Specialty Occupation Role. You need a bachelor’s degree (or its equivalent in work experience) that is directly related to your role in the company.
- Ensure the Position is a Specialty Occupation. The position’s duties must be complex enough to require a specific bachelor’s degree as a minimum hiring standard.
- Prove the Company Can Pay the Required Wage. Your start-up must demonstrate it has the financial resources to pay you the prevailing wage. This is the standard wage rate determined by the Department of Labor for your specific job title in your geographic area.
Example situation:
Rateesh
Rateesh has a bachelor’s degree in web design. He wishes to work for himself in the U.S. and operates his business as a sole proprietorship. Because a sole proprietorship is not a separate legal entity from its owner, there is no “employer” to petition for an “employee.” Rateesh and his business are legally the same. Without a distinct company structure, a valid H-1B petition is not possible, and it would be denied.
Dina
Dina is the owner of an international retail chain she founded. The company is structured as a corporation with a Board of Directors. To lead U.S. expansion, the corporation’s board offers Dina the position of Director of U.S. Operations, outlined in a formal employment contract. Because the corporation is a separate legal entity with the power to hire, fire, and direct her, it can successfully petition for Dina’s H-1B visa.
President Trump has signed a new proclamation introducing a $100,000 fee for new H-1B petitions. This change could impact employers and foreign workers planning to apply, but exclusions apply.Read our full article for more details
Step-by-Step Process:
Step 1: Form a Separate Legal Entity
Form a U.S. company that is a separate legal entity, such as a C-Corporation or a Limited Liability Company (LLC)
Step 2: Create a “Bona Fide Job Offer”
Create a detailed, signed contract between the company and you. It must specify your
- Job title
- Duties
- Salary
- Terms of employment.
Additionally, it’s recommended to include corporate governance documents (such as bylaws for a corporation or an operating agreement for an LLC). These documents may designate a Board of Directors, investors, or a managing body with the legal authority to hire, fire, supervise, and control your employment.
This structure provides strong evidence that the company, not just you as the founder, has the ability to act as a true employer.
Step 3: Secure Funding & Determine the Wage
Secure sufficient capital (from investment, personal funds, etc.) in the company’s bank account to cover the salary and business operations.
You must be paid the prevailing wage for your specific job in your company’s geographic location. You can find this wage using the Department of Labor’s (DOL) online wage library.
Step 4: File the H-1B Petition
Your company enters you into the H-1B electronic registration lottery, which typically takes place in March/April.
If you are selected in the lottery, your company files a Labor Condition Application (LCA) with the DOL, attesting that it will pay you the prevailing wage.
After the LCA is certified, your company files Form I-129, Petition for a Nonimmigrant Worker, with USCIS. This package must include all the evidence you prepared in the previous steps.
H1B Entrepreneurs and Start-Ups Considering Permanent Residency
Applicants considering permanent residency status should be aware of the long-term options. For most employment-based green cards, H-1B entrepreneur applicants may file for PERM Labor Certification sponsorship. However, it may be difficult to obtain through the U.S. Department of Labor due to the applicant’s ownership interest in the sponsoring company. If the applicant wishes to stay in the United States permanently, it is likely the applicant will have to find other visa options.
Some viable solutions to this problem are the:
- EB-1A Extraordinary Ability This category is for individuals who are at the very top of their field. A founder would need to provide extensive evidence of success, such as major media coverage about them or their company, significant awards, high salary, or other proof of widespread acclaim and original contributions to their industry. It does not require a job offer or a PERM.
- EB-2 National Interest Waiver (NIW) This is often the most suitable path for founders. It bypasses the PERM process if the applicant can prove three things:
- their proposed work has substantial merit and national importance
- they are well-positioned to advance this work, and on balance
- it would be beneficial to the U.S. to waive the standard job offer and labor certification requirements. Founders of innovative start-ups often meet these criteria.
- EB-5 Immigrant Investor Program This option is purely based on investment. The founder must invest a significant amount of capital (currently $800,000 in a Targeted Employment Area or $1.05 million elsewhere) into a new commercial enterprise that creates at least 10 full-time jobs for U.S. workers. This path is less about the founder’s personal abilities and more about their financial investment and job creation.
The main advantage of these green cards for the entrepreneur is that they do not require a PERM or a sponsoring employer, allowing you to self-petition.