If you’re a foreign entrepreneur considering starting a business in the United States, you may be wondering whether H-1B visa self-employment is possible and what steps are required to make it work. The short answer is yes. You can own 100% of a U.S. company and be employed by it on an H-1B visa, as long as the company is properly structured and all H-1B requirements are met.
Under the H-1B Modernization Final Rule, effective January 17, 2025, DHS formally recognized that entrepreneurs who own a controlling, or even a 100% interest, in a U.S. company may obtain H-1B status through that company. The rule replaced the old common-law “employer-employee relationship” standard, which had required founders to prove their company had the “right to control” their work. In its place is a simpler requirement, a bona fide job offer for a specialty occupation position. For founders considering H-1B visa self-employment, this development represents a significant shift from prior practice. What used to be one of the most difficult H-1B pathways is now one of the most clearly defined. For more information on the fundamentals of the H-1B program, please refer to our guide, What is an H-1B visa?
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How H-1B Visa Self-Employment Works
H-1B self-employment does not mean freelancing, independent contracting, or operating as a sole proprietor. The H-1B program requires a U.S. employer, meaning a legally separate entity, to file the petition on your behalf. Under the beneficiary-owner framework, that employer can be a company you own, including one where you hold a majority or even 100% ownership stake. The key is that the company must be a real, operating business, not a “shell” created solely to file a visa petition. You can watch the full discussion in our video, H-1B Self-Employment for Entrepreneurs.
What the Bona Fide Job Offer Standard Requires
Under the current rule, USCIS no longer applies the old common-law “right to control” test to H-1B visa self-employment cases. Instead, the agency evaluates whether your company has extended a bona fide job offer for a specialty occupation position. For founder-owned companies, this means three things must be in place:
- The company must be a legally separate U.S. entity, such as an LLC, corporation, or partnership, with its own Employer Identification Number (EIN) and legal presence in the United States. Sole proprietorships do not qualify.
- The company must have a real business purpose. It must be engaged in actual commercial operations, not created solely to support a visa petition. USCIS has the authority to conduct site visits and request evidence that the business is genuine.
- The position offered to the founder must qualify as a specialty occupation, meaning it requires a bachelor’s degree or higher in a directly related field. The founder must perform those specialty occupation duties the majority of the time.
While the old rule required elaborate oversight structures to prove “control,” the new standard focuses on whether the job offer is real and whether the company is a legitimate operating business. That said, strong corporate governance, including a board of directors or advisory board, a formal employment agreement, and a clear organizational structure, still strengthens the petition and demonstrates to USCIS that the company operates as a genuine employer.
Structuring Your Company When Opening a Business in the USA as an H-1B Holder
Opening a business in the USA as an H-1B holder requires more than simply registering a company. For the company to function as a qualifying H-1B petitioner, it must be structured to satisfy USCIS standards.
Entity Formation
Your business must be established as a separate U.S. legal entity, typically an LLC or corporation, with a federal EIN. The entity must have a legitimate business address in the United States and be actively engaged in real commercial operations. A company that exists only on paper to support an H-1B visa self-employment petition will not satisfy USCIS requirements.
Corporate Governance
Even though the old “right to control” test has been replaced, strong governance documentation still matters. USCIS wants to see that your company operates as a real employer. The following documents strengthen your petition and demonstrate that the business is genuine:
- Corporate bylaws (for a corporation) or an operating agreement (for an LLC) that establishes the company’s management structure and decision-making authority.
- A formal employment agreement between you and the company specifying your job title, duties, salary, reporting structure, and the terms under which your employment may be modified or terminated.
- An organizational chart showing the company’s structure.
- A board of directors or advisory board is not technically required under the new rule, but having one provides additional evidence that the company functions as a legitimate employer.
In our experience, a well-structured governance framework significantly strengthens self-sponsored H-1B petitions.
Specialty Occupation
USCIS requires clear evidence that your day-to-day role qualifies as a specialty occupation, a position that requires the practical application of a bachelor’s degree or higher in a directly related field. For H-1B visa self-employment cases, this means:
- You must perform specialty occupation duties the majority of the time. The petition should detail every duty you will perform and specify the percentage of time allocated to each.
- The rule recognizes that founders wear multiple hats. Activities directly related to owning and managing the business, such as negotiating contracts, developing a business plan, engaging with investors, or overseeing talent acquisition, are permitted, but they must remain secondary to your specialty occupation duties.
- Incidental duties like answering phones or making copies are also permissible, provided they are intermittent and minor in scope.
The job description is critical. How you describe the role in the petition determines whether USCIS classifies it as a specialty occupation. This is where experienced legal counsel makes the difference, not just in knowing the law, but in knowing how to present the role to USCIS in a way that clearly satisfies the specialty occupation standard.
Financial and Wage Requirements for H-1B Sponsorship
The financial and wage requirements of an H-1B visa self-employment petition are one of the most common factors in which beneficiary-owner petitions face scrutiny.
Prevailing Wage
Your company must pay you a salary that meets or exceeds the prevailing wage for your occupation and geographic work location, as determined by the U.S. Department of Labor (DOL). A zero salary or below-market “founder’s salary” is not permitted, regardless of your ownership stake. The wage must be reflected in a certified Labor Condition Application (LCA) before the H-1B petition is filed.
Your company must also run proper W-2 payroll. Simply transferring funds from the business account to your personal account is not sufficient. USCIS may request pay stubs, tax returns, and W-2s as evidence that the prevailing wage is actually being paid. Payroll records are among the strongest evidence that the employment relationship is real and that the company is meeting its wage obligations. Many founders overlook this, and it becomes a problem upon filing for an extension, when USCIS reviews whether the company paid what the petition promised.
Ability to Pay
Your company must demonstrate sufficient financial capacity to pay your salary from the intended start date of employment. Supporting documentation typically includes business bank statements, capitalization records, signed investor agreements, funding term sheets, client contracts, or revenue projections. The company must show it can sustain both your salary and its business operations.
H-1B visa self-employment cases require a level of structural and documentary precision that goes beyond standard business formation. The company must be structured not just to comply with state corporate law, but to satisfy federal immigration requirements at the same time. At Pandev Law, this is what we specialize in. We structure the company, draft the governance documents, build the petition, and present the case to USCIS because we understand how all three layers (corporate, immigration, and tax) work together. If the company is properly structured and the petition clearly demonstrates a bona fide job offer in a specialty occupation, H-1B sponsorship through a founder-owned entity is a proven pathway. If any piece is missing, the petition faces challenges regardless of how strong the remaining documentation may be.
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Schedule a consultationHow to Self-Sponsor H-1B Visa: Step by Step
For founders pursuing H-1B visa self-employment, the filing process follows a structured sequence:
Step 1: Form and Structure Your Business Entity
The company must be formed as a legally separate U.S. entity (LLC or corporation), with an EIN, a legitimate business address, governance documents, and a formal employment agreement fully in place before any petition is filed.
Step 2: Register for the H-1B Lottery
Unless your company qualifies as cap-exempt or the beneficiary has previously been selected in the H-1B lottery, you must participate in the annual H-1B registration through the USCIS online portal. Registration typically opens in March for the following fiscal year. Only if your registration is selected can you proceed to file a full petition.
Step 3: File the Labor Condition Application (LCA)
Once selected, your company must submit an LCA to the Department of Labor certifying the prevailing wage, work location, and terms of employment. The LCA must accurately reflect your job title, salary, and all worksites, including any remote work arrangements.
Step 4: File Form I-129 with USCIS
With a certified LCA in hand, your company files Form I-129, Petition for a Nonimmigrant Worker. For founder-owned H-1B sponsorship cases, the supporting package must include a detailed job description, governance documents, financial records demonstrating the company’s ability to pay, and evidence of your educational qualifications. This is the most critical step. How the petition is written and what evidence is included determine whether USCIS approves or denies the case. This is the opportunity to demonstrate how your structure and position satisfy the H-1B self-employment requirements.
Step 5: Maintain Compliance After Approval
An approved self-sponsored H-1B petition is not the end of the process. Initial approvals for beneficiary-owners are granted for 18 months, not the standard three years. The first extension is also limited to 18 months. After that, subsequent extensions may be granted for up to three years, subject to USCIS review. This staged approach gives USCIS the ability to verify that the business remains operational and that the employment relationship continues to meet H-1B standards. Any material changes to your role, worksite, or company structure must be reported through an amended petition.
The Bottom Line
H-1B visa self-employment is not only possible. It is now one of the most clearly defined pathways for foreign entrepreneurs to build a business in the United States. The H-1B Modernization Final Rule removed the old barriers that made founder-owned H-1B petitions so difficult to win. But eligibility alone does not guarantee approval. Success depends on three things: how the company is structured, whether the role qualifies as a specialty occupation, and how clearly the petition demonstrates all of this to USCIS.
This is exactly what Pandev Law does. We don’t just file the H-1B petition. We structure the company from the ground up to meet both corporate and immigration requirements, and we build the petition to clearly show USCIS how every requirement is satisfied. Our firm sits at the intersection of immigration law, business formation, and tax strategy, which is exactly where founder-owned H-1B cases live. If you’re considering this pathway, consult with an experienced H-1B attorney before forming your entity or taking any steps toward filing.
Frequently Asked Questions
Can you be self-employed on an H-1B Visa?
Not as a freelancer, independent contractor, or sole proprietor. But you can own 100% of a U.S. company and be employed by it on an H-1B visa, provided the company is a properly structured legal entity that files an H-1B petition on your behalf with a bona fide job offer for a specialty occupation position.
Can I start opening a business in the USA as an H-1B holder while working for another sponsor?
Yes. You can form a U.S. entity and hold passive ownership while remaining employed under your current H-1B sponsor. However, you cannot perform any active work for your own company, including management, operations, or client-facing activities, until a new H-1B petition filed by your company has been approved. Many founders use this period to structure the entity and prepare governance documents so the company is ready to file as soon as a new H-1B petition can be submitted.
How do I prove my company qualifies to self-sponsor H-1B?
Under the current rule, you no longer need to prove that your company has the “right to control” your employment in the traditional sense. Instead, you need to demonstrate a bona fide job offer for a specialty occupation position from a legitimate, operating U.S. business. Supporting documentation, including a formal employment agreement, governance documents, an organizational chart, and evidence of real business operations, all strengthen the case. A board of directors or advisory board is not required, but in our experience, it adds meaningful weight to the petition.
What is the 18-month rule for H-1B visa self-employment?
H-1B visa self-employment petitions for beneficiary-owners are approved for an initial period of 18 months, not the standard three years. The first extension is also limited to 18 months. After that, subsequent extensions may be granted for up to three years. This staged approach allows USCIS to verify that the business remains operational and that the employment relationship continues to satisfy H-1B requirements before granting a longer approval period.
What happens if my company fails while I’m on a self-sponsored H-1B?
Your H-1B status is tied to your employment with the petitioning company. If the business closes or can no longer sustain your employment, your H-1B status ends. Your options at that point include finding a new H-1B sponsor, changing to another visa category, or departing the United States. Contact an immigration attorney as soon as you anticipate a material change in your business, as early planning gives you the most options.
Work with Pandev Law
Pandev Law specializes in the intersection of immigration, business, and tax law for international entrepreneurs. Our firm has represented numerous founders in H-1B self-employment petitions as well as related company formations and business transactions. We don’t just file petitions. We structure the company, draft the governance documents, and prepare the entire petition package to clearly demonstrate to USCIS that every H-1B visa requirement is met.
Our firm has extensive experience not only in structuring founder-owned companies for H-1B compliance, but also in preparing and filing the H-1B petitions themselves. We know how to describe the role, present the evidence, and frame the case in a way that satisfies USCIS. If you are considering H-1B visa self-employment, schedule a consultation with me, Adrian Pandev, at our contact page or call (646) 354-3780. During the consultation, I will assess your background, business goals, and immigration status to determine whether this is the right pathway for you.
I offer confidential 30 minute & 1 hour consultations.
Schedule a consultation
Disclaimer: This blog article is provided by Pandev Law, LLC for general educational and informational purposes only. Although this article discusses general legal issues, it does not constitute legal advice nor does it establish an attorney-client relationship. No reader should act or refrain from acting on the basis of any information presented in this article, or elsewhere on this website, without seeking the advice of appropriate legal counsel, or other professional counsel, licensed in the relevant jurisdiction. Pandev Law, LLC expressly disclaims any and all liability with respect to any actions taken, or not taken, based on any content of this article or website. This blog article may constitute attorney advertising. Prior results do not guarantee a similar outcome
