Ever since USCIS revoked its 2010 policy memorandum for determining the employer/employee relationship, I strongly believe that sponsoring your own H-1B visa is possible. However, many have been reluctant to attempt this, and for good reasons.

For a long time, USCIS required petitioners to meet multiple criteria to demonstrate the existence of an employer/employee relationship, including the ability to control the work of the employee and the ability to hire or fire that person. Naturally, if you own your own business, the likelihood of firing yourself is slim—at least, one would hope.

In 2020, after USCIS revoked its memo, it became sufficient to demonstrate an employer/employee relationship if an individual was being paid by the entity.

In October 2023, the Biden administration proposed a new rule that included a provision to enable H-1B owners to self-sponsor. Although this is still just a proposal, it indicates the government’s willingness to accept self-sponsored H-1Bs.

On July 17, 2024, USCIS updated its FAQs making it clear that self-sponsorship is permissible. This includes a question about company ownership:

I have a controlling interest in a company. Can this company qualify as my petitioning employer to sponsor my H-1B status?
A company in which you have a controlling interest – meaning, you own more than 50% or have majority rights – may qualify as your employer and may petition for H-1B status on your behalf. In this scenario, you would be both an owner of the petitioning employer and a beneficiary of the petition (a “beneficiary owner”).

Previously, more restrictive requirements on employer-employee relationships between H-1B petitioners and beneficiaries may have resulted in H-1B beneficiary owners being ineligible. However, in 2020 we rescinded the 2010 policy memorandum, “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements,” which impacted such eligibility. See the USCIS Policy Memorandum (PDF, 379.71 KB).

The Oct. 23, 2023, Notice of Proposed Rulemaking (NPRM), Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers, proposed to codify the ability of beneficiary owners to obtain H-1B status. We continue to consider comments in response to this NPRM. However, beneficiary owners may already be eligible for H-1B status under existing regulations and policies. You must still be coming temporarily to the United States to perform services in a specialty occupation. Additionally, Department of Labor requirements related to labor condition applications, including requirements concerning the appropriate prevailing wage and wage level, still apply.

The United States remains a destination for top talent around the world. Our ability to attract and retain entrepreneurs is essential for spurring innovation, job creation, and new industries and opportunities for all Americans. We encourage entrepreneurs to use the H-1B program, or other appropriate pathways, to live and work in the United States. See Options for Noncitizen Entrepreneurs to Work in the United States.

The above information opens up the path for H-1B self-sponsorship, provided you can demonstrate that your responsibilities qualify as a specialty occupation.

If you are interested in learning more about this, please contact PLG Partner Chris Prescott at cprescott@patellegal.com.