The Potential for an H1-B as an EntrepreneurIt is possible to build a case for an H-1B self-petition as a specialty occupa...
From USCIS’ ―Employer-Employee‖ H1-B Q&A Page, a few of the questions andanswers that readily apply to this topic are as f...
then a valid employer-employee relationship may be established. For example, ifthe petitioner provides evidence that there...
determined and certified to the Attorney General that the prospective                      employer has filed a labor cond...
(4) Petition for alien to perform services in a specialty occupation ...... (H–1B) —       (i)               (A) Types of ...
( 4 ) When petitions have been approved for the total number of workers                      specified in the labor condit...
Below excerpt is from a non-precedential AAO Decision at: Mar262010_03B5203.pdf       ―USCIS may, in its discretion, use a...
( 2 ) The degree requirement is common to the industry in parallel                positions among similar organizations or...
have recognition of expertise in the specialty through progressively                      responsible positions directly r...
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Potential for an H1-B Entrepreneur

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Potential for an H1-B Entrepreneur

  1. 1. The Potential for an H1-B as an EntrepreneurIt is possible to build a case for an H-1B self-petition as a specialty occupationentrepreneur but it is not a simple task. Such an H-1B alien would likely be a self-petitioner in trying to make the case as an entrepreneur. However, it is alsopossible that such an entrepreneur might be a partner or a trusted and highly valuedassociate in a larger organization. In the latter case, it is more likely than not thatthe petitioning employer’s organization would be able to make the case through anin-house counsel, supported by experts such as business analysts and professionaleconomists to provide solid evidence for the I-129 H-1B petition filing. Such apetition could borrow some concepts from the EB-5 immigrant investor in thesame way that an EB-2 self-petitioner seeking a National Interest Waiver (NIW)might do.The borrowed concepts to be used as evidence in order to make the case mightinclude using econometric models to produce economic analyses (EA’s) based oncomprehensive, detailed and credible business plans. The major differences arethat there is no minimum required number of jobs that must be created, and nominimum amount of investment. Many EB-5 EA’s blather on about poverty levels;non-qualifying unemployment rates (not 150% of national average); Local, State orFederally designated enterprise or redevelopment zones; and socio-economic anddemographic elements within a specifically targeted-community wherein thebusiness would set up shop. All of that may be completely irrelevant to EB-5 butwould be useful to the EB-2 NIW Entrepreneur I-140. Some of this samesupporting documentation could be viewed as opinions of recognized authoritiesin support of an I-129 for an H1-B entrepreneur. See 8 CFR § 214.1 (h)(4)(ii).Similar to an ―L‖ non-immigrant manager, executive, or specialized knowledgeemployee, there is some flexibility in putting forth a petition that would support aself-petitioning entrepreneur as a member of the professions in a specialtyoccupation. Just like an ―L‖ non-immigrant, the H-1B enjoys dual-intent and at alater point in time could perhaps qualify as an EB-1C (E1-3), or as an EB-2 NIW(E2-1) entrepreneur1, or even as an EB-1EA (extraordinary ability) (E1-1)immigrant. Any of those may be either sponsored by an employer or as a qualifiedself-petitioner by virtue of the extraordinary qualifications or in the nationalinterest or as an employee of a business entity of which (s)he is a principal as apartner, officer, or stockholder.1 See attached and see it posted at: http://www.slideshare.net/BigJoe5/eb2-niw-entrepreneur-example 1
  2. 2. From USCIS’ ―Employer-Employee‖ H1-B Q&A Page, a few of the questions andanswers that readily apply to this topic are as follows:Questions & AnswersQ: Does this memorandum2 change any of the requirements to establisheligibility for an H-1B petition?A: No. This memorandum does not change any of the requirements for an H-1Bpetition. The H-1B regulations currently require that a United States employerestablish that it has an employer-employee relations with respect to the beneficiary,as indicated by the fact that it may hire, pay, fire, supervise or otherwise controlthe work of any such employee. In addition to demonstrating that a validemployer-employee relationship will exist between the petitioner and thebeneficiary, the petitioner must continue to comply with all of the requirements foran H-1B petition including:  establishing that the beneficiary is coming to the United States temporarily to work in a specialty occupation;  demonstrating that the beneficiary is qualified to perform services in the specialty occupation; and  filing of a Labor Condition Application (LCA) specific to each location where the beneficiary will perform services.******Q: The memorandum provides an example of when a beneficiary, who is thesole owner of the petitioner, would not establish a valid employer-employeerelationship. Are there any examples of when a beneficiary, who is the soleowner of the petitioner, may be able to establish a valid employer-employeerelationship?A. Yes. In footnotes 9 and 10 of the memorandum, USCIS indicates that while acorporation may be a separate legal entity from its stockholders or sole owner, itmay be difficult for that corporation to establish the requisite employer-employeerelationship for purposes of an H-1B petition. However, if the facts show thatthere is a right to control by the petitioner over the employment of the beneficiary,2 The memorandum is titled: ―Determining Employer-Employee Relationship for Adjudication of H-1BPetitions, Including Third-Party Site Placements: Additions to Officer’s Field Manual (AFM) Chapter31.3(g)(15)(AFM Update AD 10-24).‖ 2
  3. 3. then a valid employer-employee relationship may be established. For example, ifthe petitioner provides evidence that there is a separate Board of Directors whichhas the ability to hire, fire, pay, supervise or otherwise control the beneficiary, thepetitioner may be able to establish an employer-employee relationship with thebeneficiary.Q: What happens if I do not submit evidence of the employer-employeerelationship with my initial petition?A: If you do not initially provide sufficient evidence of an employer-employeerelationship for the duration of the requested validity period, you will be given anopportunity to correct the deficiency in response to a request for evidence (RFE).However, failure to provide this information with the initial submission will delayprocessing of your petition.For Easy Reference Plus Some Commentary:8 CFR § 214.2 Special requirements for admission, extension, and maintenance of status.The general requirements in §214.1 are modified for the following nonimmigrant classes:......(h) Temporary employees —(1) Admission of temporary employees — (i) General. Under section 101(a)(15)(H) of the Act, an alien may be authorized to come to the United States temporarily to perform services or labor for, or to receive training from, an employer, if petitioned for by that employer. .............. These classifications are called H–1C, H–1B, H–2A, H–2B, and H–3, respectively. The employer must file a petition with the Service for review of the services or training and for determination of the aliens eligibility for classification as a temporary employee or trainee, before the alien may apply for a visa or seek admission to the United States. This paragraph sets forth the standards and procedures applicable to these classifications. (ii) Description of classifications. ......... (B) An H–1B classification applies to an alien who is coming temporarily to the United States: ( 1 ) To perform services in a specialty occupation (except agricultural workers, and aliens described in section 101(a)(15) (O) and (P) of the Act) described in section 214(i)(1) of the Act, that meets the requirements of section 214(i)(2) of the Act, and for whom the Secretary of Labor has 3
  4. 4. determined and certified to the Attorney General that the prospective employer has filed a labor condition application under section 212(n)(1) of the Act; ...........(2) Petitions — (i) Filing of petitions — (A) General. A United States employer seeking to classify an alien as an H–1B, H–2A, H–2B, or H–3 temporary employee must file a petition on Form I–129, Petition for Nonimmigrant Worker, as provided in the form instructions. ........... (F) Agents as petitioners. A United States agent may file a petition in cases involving workers who are traditionally self-employed or workers who use agents to arrange short-term employment on their behalf with numerous employers, and in cases where a foreign employer authorizes the agent to act on its behalf. A United States agent may be: the actual employer of the beneficiary, the representative of both the employer and the beneficiary, or, a person or entity authorized by the employer to act for, or in place of, the employer as it agent. A petition filed by a United States agent is subject to the following conditions; ( 1 ) An agent performing the function of an employer must guarantee the wages and other terms and conditions of employment by contractual agreement with the beneficiary or beneficiaries of the petition. The agent/employer must also provide an itinerary of definite employment and information on any other services planned for the period of time requested. ( 2 ) A person or company in business as an agent may file the H petition involving multiple employers as the representative of both the employers and the beneficiary or beneficiaries if the supporting documentation includes a complete itinerary of services or engagements. The itinerary shall specify the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishment, venues, or locations where the services will be performed. In questionable cases, a contract between the employers and the beneficiary or beneficiaries may be required. The burden is on the agent to explain the terms and conditions of the employment and to provide any required documentation. ( 3 ) A foreign employer who, through a United States agent, files a petition for an H nonimmigrant alien is responsible for complying with all of the employer sanctions provisions of section 274A of the Act and 8 CFR part 274a. ............ 4
  5. 5. (4) Petition for alien to perform services in a specialty occupation ...... (H–1B) — (i) (A) Types of H–1B classification. An H–1B classification may be granted to an alien who: ( 1 ) Will perform services in a specialty occupation which requires theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States, and who is qualified to perform services in the specialty occupation because he or she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation; ( 2 ) Based on reciprocity, will perform services of an exceptional nature requiring exceptional merit and ability relating to a DOD cooperative research and development project or a coproduction project provided for under a Government-to-Government agreement administered by the Secretary of Defense; ( 3 ) Will perform services in the field of fashion modeling and who is of distinguished merit and ability. (B) General requirements for petitions involving a specialty occupation. ( 1 ) Before filing a petition for H–1B classification in a specialty occupation, the petitioner shall obtain a certification from the Department of Labor that it has filed a labor condition application in the occupational specialty in which the alien(s) will be employed. ( 2 ) Certification by the Department of Labor of a labor condition application in an occupational classification does not constitute a determination by that agency that the occupation in question is a specialty occupation. The director shall determine if the application involves a specialty occupation as defined in section 214(i)(1) of the Act. The director shall also determine whether the particular alien for whom H–1B classification is sought qualifies to perform services in the specialty occupation as prescribed in section 214(i)(2) of the Act. ( 3 ) If all of the beneficiaries covered by an H–1B labor condition application have not been identified at the time a petition is filed, petitions for newly identified beneficiaries may be filed at any time during the validity of the labor condition application using photocopies of the same application. Each petition must refer by file number to all previously approved petitions for that labor condition application. 5
  6. 6. ( 4 ) When petitions have been approved for the total number of workers specified in the labor condition application, substitution of aliens against previously approved openings shall not be made. A new labor condition application shall be required. ( 5 ) If the Secretary of Labor notifies the Service that the petitioning employer has failed to meet a condition of paragraph (B) of section 212(n)(1) of the Act, has substantially failed to meet a condition of paragraphs (C) or (D) of section 212(n)(1) of the Act, has willfully failed to meet a condition of paragraph (A) of section 212(n)(1) of the Act, or has misrepresented any material fact in the application, the Service shall not approve petitions filed with respect to that employer under section 204 or 214(c) of the Act for a period of at least one year from the date of receipt of such notice. ( 6 ) If the employers labor condition application is suspended or invalidated by the Department of Labor, the Service will not suspend or revoke the employers approved petitions for aliens already employed in specialty occupations if the employer has certified to the Department of Labor that it will comply with the terms of the labor condition application for the duration of the authorized stay of aliens it employs. ........ (ii) Definitions. ....... Recognized authority means a person or an organization with expertise in a particular field, special skills or knowledge in that field, and the expertise to render the type of opinion requested. Such an opinion must state: ( 1 ) The writers qualifications as an expert; ( 2 ) The writers experience giving such opinions, citing specific instances where past opinions have been accepted as authoritative and by whom; ( 3 ) How the conclusions were reached; and ( 4 ) The basis for the conclusions supported by copies or citations of any research material used.How An H1-B Entrepreneur MIGHT Use Expert Testimony Via Advisory Opinions:A Business Plan and Economic Analysis describing the entrepreneurial venture may besubmitted if it is compliant with the above definition. The same methodologies used to supportan EB-5 entrepreneur petition could be used for an H1-B. The H1-B entrepreneur however, isNOT obligated to demonstrate any minimum number of jobs to be created nor meet a minimumcapital investment figure. The H1-B entrepreneur IS obligated to show how their ―specialtyoccupation‖ will be a key component to their desired and anticipated entrepreneurial success. 6
  7. 7. Below excerpt is from a non-precedential AAO Decision at: Mar262010_03B5203.pdf ―USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Commr. 1988). However, USCIS is ultimately responsible for making the final determination regarding an aliens eligibility for the benefit sought. Id. The submission of letters from experts supporting the petition is not presumptive evidence of eligibility; USCIS may, as we have done above, evaluate the content of those letters as to whether they support the aliens eligibility. See id. at 795. USCIS may even give less weight to an opinion that is not corroborated, in accord with other information or is in any way questionable. Id. at 795; see also Matter of Soffici, 22 I&N Dec. 158, 165 (Commr. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Regl. Commr. 1972)). For reasons discussed above, the letters submitted on appeal are vague, uncorroborated, and/or irrelevant to the proceeding at hand.‖ At p. 7Resuming with the same regulation 8 CFR § 214.2(h)(4)(ii) ....... Specialty occupation means an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelors degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States. United States employer means a person, firm, corporation, contractor, or other association, or organization in the United States which: ( 1 ) Engages a person to work within the United States; ( 2 ) Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee; and ( 3 ) Has an Internal Revenue Service Tax identification number. (iii) Criteria for H–1B petitions involving a specialty occupation — (A) Standards for specialty occupation position. To qualify as a specialty occupation, the position must meet one of the following criteria: ( 1 ) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position; 7
  8. 8. ( 2 ) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree; ( 3 ) The employer normally requires a degree or its equivalent for the position; or ( 4 ) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.The self-petitioning H-1B entrepreneur must meet the qualifications both as the beneficiary and as the petitioner. (B) Petitioner requirements. The petitioner shall submit the following with an H–1B petition involving a specialty occupation: ( 1 ) A certification from the Secretary of Labor that the petitioner has filed a labor condition application with the Secretary, ( 2 ) A statement that it will comply with the terms of the labor condition application for the duration of the aliens authorized period of stay, ( 3 ) Evidence that the alien qualifies to perform services in the specialty occupation as described in paragraph (h)(4)(iii)(A) of this section, and (C) Beneficiary qualifications. To qualify to perform services in a specialty occupation, the alien must meet one of the following criteria: ( 1 ) Hold a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university; ( 2 ) Hold a foreign degree determined to be equivalent to a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university; ( 3 ) Hold an unrestricted State license, registration or certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or ( 4 ) Have education, specialized training, and/or progressively responsible experience that is equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation, and 8
  9. 9. have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty. There is plenty more where all that came from which should not be overlooked.INA § 214 ADMISSION OF NONIMMIGRANTS(h) The fact that an alien is the beneficiary of an application for a preference status filed undersection 204 or has otherwise sought permanent residence in the United States shall not constituteevidence of an intention to abandon a foreign residence for purposes of obtaining a visa as anonimmigrant described in subparagraph (H)(i)(b), or (c), (L), or (V) of section 101(a)(15) orotherwise obtaining or maintaining the status of a nonimmigrant described in such subparagraph,if the alien had obtained a change of status under section 248 to a classification as such anonimmigrant before the aliens most recent departure from the United States.(i)(1) Except as provided in paragraph (3), for purposes of section 101(a)(15)(H)(i)(b), section101(a)(15)(E)(iii) , and paragraph (2), the term "specialty occupation" means an occupation thatrequires- (A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelors or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.(2) For purposes of section 101(a)(15)(H)(i)(b), the requirements of this paragraph, with respectto a specialty occupation, are- (A) full state licensure to practice in the occupation, if such licensure is required to practice in the occupation, (B) completion of the degree described in paragraph (1)(B) for the occupation, or (C) [This subpart might suit entrepreneurs who are highly motivated, self taught, inventive and innovative, as well as particularly ambitious!] (i) experience in the specialty equivalent to the completion of such degree, and (ii) recognition of expertise in the specialty through progressively responsible positions relating to the specialty. ..... 9

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