In 2011, the USCIS opened a window it had previously closed for entrepreneurial, self-employed professionals. Now, professionals such as doctors, lawyers, engineers, accountants, computer scientists, and others may hold H-1B status with companies they own. The USICS has a stated that “entrepreneurs with an ownership stake in their companies, including sole employees, may be able to establish the necessary employer-employee relationship to obtain an H-1B visa, if they can demonstrate that the company has the independent right to control their employment.”
In August 2011, USCIS issued an updated Q &A on employee-employer relationship clarifying how self-employed workers can establish a valid employer-employee relationship to qualify for the H-1B “specialty occupation” classification. This clarification is a reversal of the USCIS' previous position, announced in a January 2010 memorandum (PDF), which effectively disqualified all business owners from H-1B visas for the first time.
While this change in policy is relatively new and largely untried, FMG physicians and other professionals who want to start their practice or work as independent contractors may wish to take advantage of this opening. It is important to be aware that the updated memorandum does not change any of the requirements for an H-1B petition. Here are the basic requirements for owner-beneficiaries of H-1B visas:
- The position must be in a specialty occupation requiring a minimum of a bachelor's degree or higher in a specific field. For example, a doctor who will perform patient services can start his own practice and qualify for the H-1B visa;
- The owner must hold the required degree and be qualified to perform services in the specialty occupation;
- The company must be a separate legal entity such as a corporation or limited liability company;
- The company must file a Labor Condition Application (LCA) specific to each location where the owner-beneficiary will perform services; and
- The company must have a right to control owner's employment including the ability to hire, fire, pay, supervise or otherwise control the owner's employment. The government gave the example of a separate board of directors with those very powers. Other arrangements such as a partnership should be acceptable as well.
In our next article, we will share a case study where Badmus Law firm was able to establish a valid employer-employee relationship for a dentist who was sole owner in her practice.