What Documentation Do You Need to Use Your Own Company to Sponsor an H1B Visa?

A previous article discussed starting your own business while working in the US on an H1B visa, which is possible as long as you follow certain rules and guidelines.  Foremost of those rules is that you cannot work for your own company, but that changes when you are the founder of a startup corporation who will run the business, and you want to sponsor your own H1B visa petition.

It is possible to use your own startup company to sponsor an H1B visa, saving the need to find another type of non-immigrant visa.  This is one possible avenue to an H1B visa, but there are specific requirements and documentation that need to be submitted with your petition that meet the other H1B visa requirements.

A Sole Proprietor Cannot Sponsor Their Own H1B Visa

The first caveat is that you cannot sponsor your own H1B visa as a self-employed sole proprietor, since you will not meet the “employee-employer” requirement.  The immigration service has come out and stated this directly, to curtail self-employment sponsorship petitions.  

Therefore, to able to submit a petition, you will have to start a corporation or limited liability company with other shareholders, which is not really too difficult if you are working with at least one other person.  Creating a formal corporation also helps to establish the separate identity of the business from the founders and shareholders.

There Must Still Be Elements of Control and Direction by the Other Shareholders

If you are a startup founder or CEO and want to have your company sponsor your H1B visa, there are a few steps involved.  One key requirement of all H1B visas is that an employer-employee relationship exists.  This is a fairly simple rule for normal H1B visa applications, but becomes problematic when you are a founder of the company.

In order to demonstrate the “employee-employer” relationship, you will need to show that there is a Board of Directors, investors committee or other management group that has authority over you as an employee/shareholder.  This should include a Board’s ability to pay, hire, fire and supervise you as the visa-sponsored founder, even though you have an ownership interest.

Documentation to Support the Board’s Control Over a Startup Founder

The USCIS website lists a number of documents that can be submitted to support the control and supervision relationship for an H1B.  The documents need to distinguish your ownership interests, and demonstrate employment control by other founders or shareholders.

Suggested documents include:

• Term Sheet
• Capitalization Table
• Stock Purchase Agreement
• Investor Rights Agreement
• Voting Agreement
• Organizational Documents
• Operating Agreements

Once you have compiled the documents, you file the petition and clearly state that you are a founder or owner of the company, and that the documents show the elements of control necessary to qualify for the visa.  While having your own company sponsor your H1B visa is not the most common path to eligibility, there is precedent for it and a procedure outlined that could lead to success.

• April 8th, 2016
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