A basic overview of the visa is provided here. If you have further inquiries as to the application process or whether or not this is the correct route for your needs, please don't hesitate to contact us.
While the H-1B specialty occupation visa in general is discussed here, there are important considerations for entrepreneurs with an ownership stake in their companies.
For these employee's to obtain an H-1B visa, it must be demonstrated that the petitioning company has an independent right to control their employment. This is to say that there is an employer-employee relationship between the beneficiary and his or her business as indicated by the company's authority to supervise work, fire the beneficiary and generally issue treatment as a regular employee of the company.
It is recommended to include as much evidence as possible showing outside control over the beneficiary in proving a valid employment relationship between the petitioning entity and the H-1B worker. Items worth presenting include:
- Term sheets.
- Capitalization tables.
- Stock Purchase Agreements.
- Investor Rights Agreements.
- Voting Agreements.
- Organizational documents and operating agreements/bylaws clearly describing the authority of the Board of Directors in a corporation or manager of an LLC to control the work of the employees and establishing that the selection process of the Board of Directors/manager of the LLC that is not controlled by the beneficiary (this is described in further detail below).
- Employment Agreements between the petitioner and beneficiary or an Employment Offer Letter detailing the terms and conditions of employment and explaining how the employer will exercise its right to control the beneficiary, how often the beneficiary will have to report on the progress of work and to whom, how the beneficiary will be supervised throughout H-1B employment, the extent of the employer’s discretion over when and how long the beneficiary will work, the method of payment, the employer’s role in paying and hiring assistants to be utilized by the beneficiary, the provision of employee benefits and other relevant considerations.
- Descriptions of the performance review process along with progress and performance evaluations.
- Letters from the directors/investors/preferred shareholders explaining how the right to control the work of the beneficiary will be exercised on a day-to-day basis, who will supervise the beneficiary and evaluate his or her work, and the management structure of the company.
- Copies of the petitioner’s organizational chart, demonstrating the beneficiary’s supervisory chain.
- A Company Handbook describing the employment relationship between the company and its employees.
- Any other relevant documents.
With a corporation, an applicant can demonstrate an employer-employee relationship if there is a separate Board of Directors with the ability to hire, fire, pay, supervise or otherwise control the beneficiary’s employment. Aside from showing a board of directors that controls the individual’s work, evidence can be presented of preferred shareholders, investors or other factors establishing that the petitioning company has the right to control the terms of the beneficiary’s employment.
It should also be noted that there is no requirement that the Board of Directors should only include U.S. persons. Therefore, it may be comprised of other foreign nationals or even relatives or friends of the beneficiary.
Limited Liability Companies (LLCs)
With an LLC, an applicant may demonstrate a valid employer-employee relationship if the manager of the LLC controls the employment of workers as provided for in the Operating Agreement. That manager may not be the H-1B beneficiary.