H1B For Entrepreneurs

The United States has a long, rich history of welcoming innovative entrepreneurs and skilled workers into our country. August 2, 2011, USCIS outlined series of new policy, operational, and outreach efforts that will help fuel the nation’s economy and stimulate investment by making it easier for high-skill immigrants to start and grow companies and create jobs in the United States.

As part of the Administration’s comprehensive effort to attract and retain high-skill entrepreneurs, USCIS clarified that immigrant entrepreneurs may obtain an employment-based second preference (EB-2)  immigrant visa if they satisfy the existing requirements, and also may qualify for a National Interest Waiver under the EB-2 immigrant visa category if they can demonstrate that their business endeavors will be in the interest of the United States; They also clarified when a sole employee-entrepreneur can establish a valid employer-employee relationship for the purposes of qualifying for an H-1B non-immigrant visa;

As far as what factors does USCIS consider when evaluating the employer-employee relationship, USCIS will evaluate whether the petitioner has the “right to control” the beneficiary’s employment, such as when, where and how the beneficiary performs the job.  No one factor is decisive and adjudicators will review the totality of the circumstances when making a determination as to whether the employer-employee relationship exists.