What is the new regulation about H-1B sponsorship for business owners?
Starting January 17, 2025, H-1B holders can sponsor an H-1B for a business they own, as long as they meet certain requirements. The key condition is that the worker must be performing specialty occupation work at least 51% of the time.
What are the requirements for a business to be eligible for H-1B sponsorship?
To qualify, the business must:
- Be legitimate and operational, not just a sole proprietorship.
- Have legal presence and an IRS tax ID.
- Offer a real job opportunity in a specialty occupation related to the business.
- Have someone designated to receive legal notices and lawsuits.
What are the initial conditions for H-1B approval?
USCIS will initially approve H-1B sponsorship for 18 months, with a potential 18-month extension. After this period, the approval can be extended for a full 3-year term, provided all conditions are still met.
Can a business owner self-sponsor for a PERM (Permanent Labor Certification)?
It’s challenging to self-sponsor for a PERM, as it requires demonstrating that no U.S. worker is available for the job, which is difficult if you own the company. However, if you reduce your ownership stake, you may be eligible to apply for PERM. Other options, such as self-sponsorship under a National Interest Waiver, could also be considered.
Can someone transfer their H-1B to their own company if they’ve been laid off and are in the 60-day grace period?
While it’s technically possible, it’s not always practical. To transfer your H-1B to your own company, you’ll need to form a legitimate business entity, set up a proper location, and develop a clear business model. If you’ve been planning this transition, it may be an option, but it’s unlikely to happen within the last few days of the grace period.
Can someone on F1 OPT or STEM OPT sponsor themselves for the H-1B lottery through their business?
Yes, there is nothing in the rules preventing you from using your business entity to sponsor yourself in the H-1B lottery. However, be cautious, as USCIS might heavily scrutinize such cases. If you’re forming a business just to register for the lottery, this might not be seen as a valid job offer and could violate the lottery rules. A legitimate business and ownership can make this possible, but for STEM OPT, you will also need to have someone sign off on your I-983 training plan.
Could the new administration undo this regulation?
While the Trump administration cannot immediately undo this regulation with an executive order, it could face challenges:
- Lawsuits from pro-immigration or restrictive groups could arise.
- The administration would have to go through the regulatory process to reverse it.
- Congress might attempt to reverse the regulation using the Congressional Review Act, though this is rare.
What should applicants be aware of if they want to use this regulation?
Applicants should be prepared for additional scrutiny during the application process. Under the previous administration, there were higher rates of RFEs (Requests for Evidence) and denials, as well as longer processing times. The incoming administration might make the process more difficult, potentially deterring some applicants. It’s important to stay updated on how the regulation is implemented and whether it remains a viable option for entrepreneurs.
Is there anything else to consider with this regulation?
This regulation represents a significant policy shift and is still in its early stages. As it is implemented, there may be adjustments and clarifications, especially with the change in administration. The new beneficiary-owned rule introduces a fresh regulatory process, so those considering it should continue to monitor updates for any changes.
Conclusion:
This new regulation provides a path for H-1B holders to sponsor a business they own, but it requires careful attention to the requirements and potential challenges. It’s essential to be aware of the scrutiny involved, the specifics of the process, and the broader regulatory landscape as this evolves.