H-1B entrepreneurial visa, a lesser known version of the H-1B category, is an extremely viable option available to H-1B workers seeking to explore the world of startups and investment. This gives the H-1B worker an option to work in their own enterprise and come about by President Obama’s startup initiative announced in 2011. The better known options for entrepreneurs are E-1, E-2, and L-1A Executive/Managerial non-immigrant visas or the EB5, which is an immigrant option.
H-1B entrepreneurial petitions are filed pursuant to USCIS Fact Sheet: Initiatives to promote Startup Enterprises and Spur Job Creation, USCIS Issues Guidance Memorandum on establishing the Employee-Employer relationship, and Neufeld Memo (dated January 8, 2010) determining Employer-Employee relationship for adjudication of H-1B petitions, including Third Party Site placements.
An owner of a startup or an entrepreneur can obtain this visa even if the individual is a 100% shareholder; as long as the owner is performing specialty work in that startup and the entrepreneur’s day to day tasks are “controlled” by a Board of Directors/Managers and the entrepreneur doesn’t dictate the terms of his or her employment. The instructions contained in Neufeld Memo, requiring a valid employer-employee relationship to exist between US employer (the startup corporation) and beneficiary (the owner beneficiary) is an absolute must.
Our clients have used this category successfully for the past several years. We see that the use of this category provides reprieve to H-1B workers, who are of the entrepreneurial bent and want to own as well as work in their startups.