H1B Worker’s Ownership Interest in Petitioner Must Be Disclosed

Beginning May 1, 2015, stakeholders must begin using a revised version of the H classification supplement (form I-129), which specifically asks whether the beneficiary of the H1B petition has an ownership interest in the petitioning employer. This disclosure requirement is related to U.S. Citizenship and Immigration Services (USCIS) efforts to examine whether an employer-employee relationship exists – a key requirement for all H1B petitions.

Ownership Question Raises Issue of Right to Control

Since January 2010, the USCIS has placed great emphasis on the requirement of there being an employer-employee relationship in H1B petitions. This concept is defined in terms of the employer’s right to control the employee. In situations where the H1B beneficiary owns a controlling interest in the petitioning company, this naturally raises questions about how an employer-employee relationship can exist, given that the employer and the employee are, in essence, one and the same.

Strategies to Overcome New H1B Form Disclosure

As explained in the MurthyDotCom NewsBrief, Revised I-129 Requires Disclosure of Beneficiary’s Ownership Interest in the Employer (23.Dec.2014), the H1B provisions do not universally exclude the possibility of the H1B worker having an ownership interest in the petitioner. However, such petitions present unique challenges regarding the types of evidence that must be included to establish that an employer-employee relationship truly exists. As has been discussed over the past several years, one possible way to address this is by creating an independent board of directors. However, there are a number of factors that must be considered from an immigration law perspective, so such filings generally should be discussed with an experienced attorney.

Conclusion

The USCIS has expressed a desire to assist foreign national entrepreneurs in finding ways to invest in the United States and work for their respective investments. Although there is little official guidance from the USCIS on these ‘entrepreneur H1B’ filings, there is sufficient information available that is making it possible for many foreign national entrepreneurs to proceed with these types of cases with relative confidence regarding the type of information and evidence the USCIS is looking for to approve such cases. The Murthy Law Firm is available to advise and assist those interested in filing H1B petitions via a company owned by the H1B worker.

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