> In response to stakeholder feedback, USCIS has also updated existing FAQs to clarify that an H-1B beneficiary who is the sole owner of the petitioning company may establish a valid employer-employee relationship for the purposes of qualifying for an H-1B nonimmigrant visa – which is used by U.S. businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as science, engineering, and computer programming.
I think if you read the FAQ it seems like you previously could establish an employer-employee relationship (required for H1B) if you were part-owner. This just clarifies that its also possible even if you're the sole owner.
I think they are clarifying the extreme case not limiting things. If a company has 2+ shareholders or 2+ employees it’s a stronger case to support requesting an H1B.
That's an oversimplification, quoting the newly updated USCIS FAQ on the subject of H-1B employer/employee relationship:
"if the facts show that there is a right to control by the petitioner over the employment of the beneficiary, then a valid employer-employee relationship may be established. For example, if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary, the petitioner may be able to establish an employer-employee relationship with the beneficiary."
In other words –- the employer-employee relationship may be established when a board of directors controls the employment status of the beneficiary (e.g., a founder) on behalf of the corporation (the petitioner).
How can this be practically used? Start a startup, get a board of directors? How many startups have a board of directors? If you already have 500K or 1M lying around, you can get the EB5 visa anyway which does away with this nonsense of requiring a board of directors that control you and all the restrictions that comes with H1B and all the advanced qualifications for EB2 that are not relaxed for entrepreneurs.
Every corporation has a board of directors. You're right, if you have the cash to go this alone, you're golden. If you don't then you'll be looking for cofounders and investors and will like have < 50% equity (and voting rights). i.e. everything is just as it should be and you can be controlled/fired/whatever just like any other founder in this situation.
> In response to stakeholder feedback, USCIS has also updated existing FAQs to clarify that an H-1B beneficiary who is the sole owner of the petitioning company may establish a valid employer-employee relationship for the purposes of qualifying for an H-1B nonimmigrant visa – which is used by U.S. businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as science, engineering, and computer programming.