AskMyLawyer- Self Employment H1B and Start Up Work Visa Issues!

AskMyLawyer- Self Employment H1B and Start Up Work Visa Issues!

In this segment of Ask my lawyer, I want to
address the H1B self-employment question this question comes from Alex from San Francisco
and Alex is asking a few questions. The first question Alex is asking is what
are the requirements for successful self-employment H1B to happen? Well, Alex, as I mentioned in previous videos
the new policy came out in August of 2011 relaxing the rules about employer-employee
relationship standard for H1B self-employment what they were looking for is some sort of
a board of directors in the company that will relieve the H1B employee from taking decisions. If you can show that kind of board and what
their activities are and how they are relieving the H1B employee from taking major decisions
it may be possible to set up a company this way for successful H1B self-employment. The second question asked Alex is asking is
whether it’s possible once the H1B is approved to proceed with a green card application for
the same company they actually sponsor the employee, the employee’s own company. Once again, Alex, this is a good question
it’s still kind of a gray area there is a complicated. It’s because unlike the H1B and this new policy
when you go ahead and file for a green card under the traditional perm labor certification
process the fact that you are the owner of the company could be an issue. In fact, it is a question on the ETA in 1989
and so it’s very difficult to to know what will happen when Labor Department will find
out that you are the owner of the company and your new sponsoring yourself it may be
possible if we convince them again using the board using any documents it could show that
there is a clear separation between the employee who is now the owner of the company and he
does a technical role in the company and somebody else in the company who’s in charge of hiring
and firing and making decisions who’s gonna work in the company. If you can, you know to answer that balance
it may be possible to still get a green card through self-employment H1B but at this point
is very unclear what are the chances of this to succeed. So the third question that Alex is asking
is What are the requirements to keep renewing H1B visa once I get it approved as a self-employed
owner? It’s a good question Alex, the requirements
are the same for like any other H1B visa approval, you have to maintain salary requirements if
to pay the prevailing wage the company has to maintain a good records, being able to
grow and maybe hire workers, so it’s just same requirements like any other H1B company. The final question that Alex is asking, what
if the H1B visa gets denied based on self-employment what are my options? Well, the options are simple you can find
a motion to reopen or appeal the petition if we have enough evidence to show that you
were had all the requirements to get this visa approved you still can’t find a motion
to reopen or appeal your case and hopefully get a favorable decision this way. Once again thank you for sending us your questions
and we look forward to seeing you in the next segment of Ask my lawyer. Thank you!


  • Aabhas Sharma

    May 8, 2013

    Hey.. I actually have a related question. I already am on an H1B visa working for a company in San Francisco, but I have a start up idea that is now materializing in to a company with funding with me as the founder. If I want to work for and on my own company, what is the path way I will have to follow?

  • Aabhas Sharma

    May 8, 2013

    Awesome. checking it out now. Is it at the immigration lawyer blog?
    What is the title of the post?


  • Shashank Kanha

    June 11, 2013

    Hi Jacob, I have a simple question. I am an animator and vfx artist. I don't want to do job any where. But rather I want to do freelance works and would like to sell my animated short movies directly through internet. But I want to settle in USA. Will it be possible.

    Thank you.

  • Vi An MUSIC

    August 11, 2014

    I have a very good question for you.  I'm a Canadian Citizen since 1988 and Have recently Sponsored my Husband who is an American, we've been married 3 years and we are both self-employed, myself music composer and music producer, my Husband a writer and musician.  He's found many contract work in NYC recently and I'm having a very difficult time with US border / immigration.  They do not recognize our marriage as I state that I am here solely to be with my husband as a visitor.  As a self employed, full time professional composer and recording artist who single handedly sponsored my Husband for his permanent residence in Canada, (1) why don't I automatically have Green Card status?  (2) Can I apply for this H1B and carry on looking for work as an independent contractor?  Thank you!


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