Here is what you need to know about H-1B visas when you are self-employed. Until recently, there was not much clarity whether a self-employed person could have his or her company sponsor an H-1B petition for the owner. USCIS determined however that in cases in which an H-1B beneficiary has an ownership interest in a petitioning entity or is self-employed, his or her petition could be granted. The sponsoring company would need to demonstrate that the it is completely distinct from the beneficiary by establishing that there is an employee-employer relationship that the entity rather than the individual can control.
Why This Distinction Matters
It is very important to document this relationship appropriately. Any petition needs to include strong supporting evidence. The employer will need to carefully consider whether the necessary employer-employee relationship can be demonstrated. Remember the employer rather than the individual must have the right to direct, supervise, and review the business owner’s work and to terminate his or her employment to qualify the employee for an H-1B in this circumstance.
The best way to avoid a delay is to work with an Arizona immigration attorney before moving there and initiating this process so as to ensure all your materials are submitted properly and on time.
Types of Evidence Used to Support the Relationship
There are many different types of evidence you can submit with your petition to support this allegation of a distinct relationship. These include:
- An offer letter that explains the nature of the employer/employee relationship
- Existence of a separate governing board with control over hiring and firing decisions
- A description of the company’s performance review process
- A copy of the organizational chart showing supervisors
- Employment contracts between the individual and employer talking about the conditions and terms of employment
- Company bylaws discussing organizational decision-making by management and board members
In these situations, it is essential to complete all of the filing paperwork properly and to have documentation that supports this distinct relationship. Consulting with an Arizona immigration attorney before filing can help you to avoid common issues and ensure that you submit the appropriate materials in the right timeline. Do not hesitate to reach out to an Arizona immigration attorney to get your questions answered. Don’t make the mistake of thinking that you should handle a complex immigration issue like this on your own; instead, get help from an experienced attorney right away, so you can avoid common mistakes.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding H-1B Visas When You Are Self-Employed, or other Immigration Law matters, please feel free to contact Phil D. Ortega at 480.461.5330, log on to udallshumway.com, or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.