H-1B and EB-2 Green Cards for Entrepreneurs

As discussed in our previous articles, President Obama has initiated a policy of comprehensive immigration reform focusing on job creation.  We are now beginning to see some of these policies come to fruition.  Earlier this month, the USCIS issued a news release announcing that under current immigration law, an entrepreneur who is the sole owner of a company could in fact attain an H-1B or even a green card through the EB-2 process.  In this article, we will briefly discuss how an entrepreneur can apply for an H-1B visa, as well as an EB-2 based green card.

            Entrepreneur as an H-1B Beneficiary

The largest hurdle an alien entrepreneur faces is demonstrating that a valid employer-employee relationship exists between the company and the entrepreneur.  If the entrepreneur is the sole owner of a company and attempts to petition as an H-1B worker, then essentially the entrepreneur would be employing him or herself, which is not a valid employer-employee relationship for immigration purposes.  The recent USCIS news release and related FAQ’s expressly state that, while it may be difficult to prove, a company that is solely owned by an alien entrepreneur can in theory petition for an H-1B on behalf of the entrepreneur because a corporation is an entity that is separate and distinct from its owner(s).  The example given by the USCIS is a situation when a company has a separate, independent Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the entrepreneur. In this type of scenario, the petitioner may be able to establish that the entrepreneur is a bona fide employee and thus possess the requisite employer-employee relationship.

            Entrepreneurs and Legal Permanent Residence Under EB-2

In addition to highlighting the possibility of an entrepreneur applying for H-1B under her own company, the USCIS also emphasized the possibility of an entrepreneur attaining a green card through the EB-2 process as long as the following requirements are satisfied:

  • The entrepreneur will be working for a U.S. employer who files a petition on the entrepreneur’s behalf (presumably, this can also be a company that the entrepreneur owns similar to H-1B)
  • The entrepreneur is a member of the profession holding an advanced degree or foreign equivalent degree
  • Underlying position requires, at a minimum, a professional holding an advanced degree or the equivalent
  • Petitioning employer has received an individual labor certification from the Department of Labor; and
  • The entrepreneur meets all the specific job requirements listed on the individual labor certification

A petition under EB-2 requires evidence that the entrepreneur possess an advanced degree (a Masters degree or higher), or exceptional ability in the field.  Additionally, the USCIS emphasized the ability for entrepreneur to apply under a National Interest Waiver (“NIW”) which would eliminate the need for an employer sponsor altogether.  Like other NIW petitioners, the entrepreneur would still need to show that he or she is seeking employment in an area that 1) possesses substantial intrinsic merit, 2) is national in scope and, 3) it would be contrary to the national interest to deprive a prospective employer of the services of the entrepreneur.

Overall, we applaud the President’s efforts in focusing on the ability for entrepreneurs to attain H-1B’s and EB-2 based legal permanent residence through our existing immigration system.  We hope that any future legislative efforts to overhaul the immigration system will similarly prioritize the ability of alien entrepreneurs to open businesses here in the United States.

For questions or comment regarding this article please contact attorney Fok at: jfok@jclawoffice.com