USCIS is going to implement new rules for H1B in 2025. The most impactful rule will allow you, as a startup entrepreneur, to self-sponsor H1B.
Traditionally, qualifying for an H-1B visa required demonstrating an employer-employee relationship. This relationship ensured that the beneficiary was employed by a separate entity, with ownership distinct from the individual applying for the visa. The idea was simple: if a beneficiary owns the company, they can’t also be its employee, as there would be no external accountability to an employer.
However, a recent change by the U.S. Citizenship and Immigration Services (USCIS) is transforming this dynamic. Under the new rule, self-employment is now permissible for H-1B applicants. This means that startup entrepreneurs can sponsor themselves for an H-1B visa, even if they own 100% of the business.
Key Requirements for Self-Sponsoring an H-1B
To qualify under this new rule, applicants must meet a few critical criteria:
- Valid Business Plan: Entrepreneurs must provide a clear and actionable business plan.
- Specialty Occupation Work: They must demonstrate that the majority of their job duties require specialized skills typically associated with a specific degree.
For example, a startup founder who acts as a Chief Technical Officer (CTO) and performs specialized technical tasks may qualify. However, someone engaging in general entrepreneurial activities, such as management or administration, may not meet the requirements. The focus is on proving that the role involves specific expertise and job functions tied to a degree in a relevant field.
Opportunities and Concerns
While this change opens the door for entrepreneurs to pursue innovative ventures in the U.S., it also raises concerns about potential misuse of the system. Critics worry that this flexibility might lead to a surge in questionable H-1B registrations. Here are some scenarios raising alarm:
- Bogus Startups: Individuals with expiring work authorizations might create insincere or superficial business projects simply to qualify for an H-1B visa. A polished business plan may be enough to get USCIS approval, even if the project isn’t legitimate or viable.
- Abuse by Visitors: Foreign nationals could enter the U.S. on visitor visas, incorporate a business, and self-sponsor an H-1B. If selected in the lottery, they could submit minimal documentation to maintain status without actively contributing to a legitimate enterprise.
These concerns stem from USCIS’s limited capacity to assess the viability of a business plan or the authenticity of a proposed project. The fear is that some individuals might exploit these gaps to prolong their stay in the U.S. without genuinely engaging in productive work.
What Lies Ahead
While the new rule has the potential to foster innovation and attract talent, USCIS must address the risk of abuse. This could involve implementing stricter guidelines for evaluating business plans and conducting follow-ups to ensure compliance. Without these safeguards, the policy could inadvertently open the floodgates to fraudulent applications, undermining its purpose of supporting genuine entrepreneurial activity.
In the meantime, startup founders looking to self-sponsor an H-1B should focus on developing legitimate business plans and clearly demonstrating their specialized roles within their companies. By aligning with the intent of the new rule, they can harness this opportunity to innovate and contribute meaningfully to the U.S. economy.