Re:Ask HN:Can I start a company on an H1B visa?
by acak on Monday March 12, 2012 @12:25AM
(#3692328)
One correction.
USCIS has updated the rules and clarified that a controlling interest in the company is allowed (i.e. > 50%) as long as the employee-employer relationship is maintained and a board of members exist who can control the employment and terms of the beneficiary.
Specifically (quote from the page on the second link):
Q: The memorandum provides an example of when a beneficiary, who is the sole owner of the petitioner, would not establish a valid employer-employee relationship. Are there any examples of when a beneficiary, who is the sole owner of the petitioner, may be able to establish a valid employer-employee relationship?
A. Yes. In footnotes 9 and 10 of the memorandum, USCIS indicates that while a corporation may be a separate legal entity from its stockholders or sole owner, it may be difficult for that corporation to establish the requisite employer-employee relationship for purposes of an H-1B petition. However, if the facts show that there is a right to control by the petitioner over the employment of the beneficiary, then a valid employer-employee relationship may be established. For example, if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary, the petitioner may be able to establish an employer-employee relationship with the beneficiary.
USCIS has updated the rules and clarified that a controlling interest in the company is allowed (i.e. > 50%) as long as the employee-employer relationship is maintained and a board of members exist who can control the employment and terms of the beneficiary.
http://www.washingtonpost.com/national/on-immigration-a-step...
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f...
Specifically (quote from the page on the second link):
Q: The memorandum provides an example of when a beneficiary, who is the sole owner of the petitioner, would not establish a valid employer-employee relationship. Are there any examples of when a beneficiary, who is the sole owner of the petitioner, may be able to establish a valid employer-employee relationship?
A. Yes. In footnotes 9 and 10 of the memorandum, USCIS indicates that while a corporation may be a separate legal entity from its stockholders or sole owner, it may be difficult for that corporation to establish the requisite employer-employee relationship for purposes of an H-1B petition. However, if the facts show that there is a right to control by the petitioner over the employment of the beneficiary, then a valid employer-employee relationship may be established. For example, if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary, the petitioner may be able to establish an employer-employee relationship with the beneficiary.