H-1B Visa: An Option for Owners and Managers of U.S. Businesses

Although the H-1B Visa is not usually thought of as an option for an investor/entrepreneur, it may be utilized by some of these foreign business entrepreneurs. Foreign investment in U.S. businesses creates economic benefits beyond merely a visa benefit for the foreign investor. The Small Business Administration (SBA) estimates that 99 percent of the firms in the United States are small businesses, and small firms have generated 60 to 80 percent of the net new jobs annually over the past decade. It is estimated that these small businesses employ 41 percent of the United States’ high-tech work force. These days, immigrants have an ever increasing role in the creation of these small businesses. For instance, in the 1990’s, Immigrant-operated companies accounted for $19.5 billion in sales and 72,839. Twenty-nine percent of these companies were in the technology sector.

Prohibition on Self-petitioning

For H-1B purposes, the United States Citizenship and Immigrations Service’s (USCIS) regulations define a U.S. employer as a “person, firm, corporation, contractor, or other association, or organization in the United States which:

• engages a [another] person to work within the United States; and • has an employer-employee relationship with respect to employees under this part…”

This provision clearly makes it is impossible for an individual to self-petition for H-1B status. However, the H-1B visa is a viable nonimmigrant visa option for an individual who was to invest in a separately chartered legal entity that is legally separate from the H-1B employee. In such as situation, that entity could petition for that employee even if all the shares of the entity are owned by the H-1B employee. For example, a corporation, in certain circumstances, could file an H-1B visa for the employer/owner.

Moreover, the H-1B visa may not be a viable option for start-up companies petitioning for the sole-owner of the company. USCIS regulations require the foreign national to immediately be able to perform services in a specialty occupation. Therefore, if a new U.S. company is not yet viable enough to prove that the H-1B worker will immediately begin working in a specialty occupation, the petition may be denied by the USCIS.