Proposed H-1B rule: Entrepreneurs can get visa sponsored by their own company

The proposed rules to modernise the H-1B program, change the definition of an employer. This will enable entrepreneurs to be eligible for an H-1B status – in other words, their own entity can sponsor them for this work visa.

Kripa Upadhyay, US-based immigration attorney told TOI, “Among the many changes proposed, the one I’m most excited to see come to fruition is what is likely to be the closest US can get to a stand-alone ‘startup’ visa.

Under the proposed rule, the US Citizenship and Immigration Services (USCIS) seeks to alter the definition of US employer which, among other things, will make it much easier for a foreign national to be sponsored for an H-1B position by a company he or she owns.”
The proposals issued by the US Department of Homeland Security (DHS) and USCIS on Friday night, also address the scenario where a potential H-1B beneficiary (individual to be sponsored) owns a controlling interest in the sponsoring entity.

Upadhyay adds, “For the sponsoring entity, that is more than 50% owned by the H1B worker, the beneficiary would be permitted to perform duties directly related to owning and directing the business – including duties that are non-specialty occupation duties, so long as more than half of the individual’s time will be spent performing specialty occupation duties.”
DHS proposes to limit the validity of initial and first extension applications in such instances, to 18 months each. Subsequent extensions would be permissible in up to three-year increments.

The National Venture Capital Association has noted that many entrepreneurs enter the US on an H-1B visa and spend many years working for an employer before obtaining a green card that enables them to start their own venture. Given the decades-long wait time for Indians, this translates into lost opportunities. The proposal is likely to be of immense benefit to the Indian diaspora who wishes to venture into the startup arena.
However, the proposed rules will undergo the federal review process and it will take some months for finalisation and implementation.