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Self-Employed on H-1B Visa

For entrepreneurs who have started their own companies in the U.S. while on OPT (Optional Practical Training), or for those currently on an H-1B visa who want to branch out and work on their own endeavor, having an H-1B sponsored by one’s own company can be an option.

Caroline Ostrom, Minneapolis business immigration attorney, assists entrepreneurs and investors worldwide who are seeking U.S. visas. We encourage you to contact us if you need legal advice regarding H-1B eligibility or the application process.

H-1B Visa Requirements

A self-employed H-1B is possible, assuming that all of requirements of the H-1B visa are met:

  1. an employer-employee relationship exists between the petitioner and the candidate,
  2. the position is a “specialty occupation” that typically requires a Bachelor’s degree or the equivalent;
  3. the candidate has a relevant Bachelor’s degree or equivalent; and
  4. the candidate will be paid the appropriate wage for the position.

Of these requirements, demonstrating the employer-employee relationship is generally the most challenging for the self-employed H-1B. USCIS has said that it is possible for someone who holds a 100% ownership interest in the petitioning H-1B company to demonstrate an employer-employer relationship if the company has, for example, an independent Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the candidate’s employment. There are other potential corporate structures as well that may satisfy this requirement, such as preferred shareholder arrangements.

Who Can Apply?

For those who are currently in H-1B status, it is possible to transfer to a self-employed H-1B. There is also the option, if currently on an H-1B, to file for a part-time, concurrent H-1B for the start-up, while maintaining the primary H-1B that is in place.

For those who are not currently in H-1B status, and who do not make the H-1B Cap, other temporary visa options may be the E-1/E-2 visa or the L-1A visa.

How Our Minneapolis Immigration Attorney Can Help

We enjoy working with start-ups and we have filed self-employed H-1B petitions successfully. We partner with corporate counsel to establish the supporting documentation necessary to present a strong case for the employer-employee relationship, a key factor for a successful self-employed H-1B petition. We also evaluate the other factors of the case, and help determine if an H-1B transfer or concurrent H-1B is the best way forward. In addition, we provide guidance and assistance regarding the employer responsibility side of the H-1B.

Based in Minneapolis, our immigration team works with employees and companies in the Twin Cities and throughout the globe. We welcome you to contact Ostrom Law Office for assistance with your immigration matter.

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