It’s tough to feel optimistic about U.S. immigration these days.  Capricious rule changes, unlawful detentions, draconian travel bans – whether you’re an attorney or a prospective immigrant to the U.S., there’s ample cause for pessimism.  But lost in the shuffle of the new administration’s onslaught is one positive development for visa seekers in the H-1B category:  for the first time, USCIS will now permit an H-1B applicant to have a controlling interest in the sponsoring entity.  This means an H-1B holder doesn’t need to be merely an employee, “working for the man” – they can in fact be running their own enterprise here, on their terms, and still be on the path to a green card.  DHS has, in their own words, “strengthened” the H-1B program.  While the allowance for this benefit has been in place in the regulations since 2020, the recent modernization rule has finally spelled out the requirements, limitations, and implementation, officially opening a new avenue for immigrant business owners.

The guidance remains murky, but it’s an exciting development.  And it’s all happening right now.

H-1B Background

Established by Congress in 1990, the H-1B program allows U.S. employers to temporarily hire foreign workers in specialty occupations.  According to USCIS, the visa applies mainly to individuals whose positions require the theoretical and practical application of highly specialized knowledge, typically supported by a relevant bachelor’s degree or equivalent experience.  The qualifying job duties must be complex in nature, and employers are required to pay the H-1B holder no less than the prevailing wage as determined by the Department of Labor.

Changes

Effective January 17, 2025, H-1B visas can now be issued to immigrants who themselves own and control the sponsoring entity.  To qualify, the beneficiary must own more than 50% of the petitioning company or hold majority voting rights.  Coming at the end of a long history of mostly restrictive policy changes – higher filing fees, travel limitations, the “Buy American, Hire American” mandate – this is a notably positive development that’s finally being implemented.

H-1B Benefits

The H-1B visa is initially granted for 18 months, with a renewal option for another 18 months, followed by an additional three-year extension.  Visa holders can apply for a green card and are eligible for a social security number, a U.S. driver’s license, and a bank account.  Spouses and children under 18 can accompany the visa holder into the United States under H-4 dependent status.  There are no nationality requirements, meaning applicants do not need to be from a treaty country the way E visa seekers do.

Lottery Process

This part is cumbersome:  to attain an H-1B visa, applicants must first register for a lottery.  Although the number of visas is capped at 65,000 with an additional 20,000 available for those who have master’s degrees, more than five times that many people registered for FY2025, with 470,000 people entering the lottery last year.  Of those, only 135,137 were selected for the petition phase, at which point sponsors work with immigration attorneys to submit supporting documents and fees for USCIS reviewers.  The FY2026 lottery registration window opened back on March 7, 2025, and closes today, March 24.

Requirements for Entrepreneurs

To qualify for this type of H-1B visa, an entrepreneur must legally establish a corporation (sole proprietorships are not permitted) and maintain at least 50% ownership of the company.  The business may be either a newly established startup or an existing entity.  The entrepreneur must demonstrate that their job duties align with a specialty occupation requiring a related bachelor’s degree, show that they meet or exceed the prevailing wage for the position, and provide evidence of the company’s financial stability.

Why a Business Plan?

While a multibillion-dollar company sponsoring people for H-1B can forgo a traditional business plan – really, does USCIS need Amazon or Microsoft to explain its business model? – this new foray into owner-applicant petitions does require some more nuts and bolts explanation.  What is the company’s product or service, and how large is the potential U.S. market?  What competition will it face, and how can it position itself to succeed?  How will the business allocate funding, and what financial benchmarks are realistic over the next 3-5 years?  These questions are at the heart of a comprehensive business plan.

For an applicant with a controlling interest in the sponsoring entity, the management section and job duties are of particular importance, along with proof that they’ll earn a salary in line with the DOL’s expectations.

Main Considerations

We asked Joseph Hamel, a partner at Jia Law Group in New York City, for his view on the rule change and what it means for entrepreneurial-minded immigrants, particularly when it comes to their business plan and describing their role and management team:

“This is definitely a newer concept, and the rules around it are still settling after the recent clarification.  Based on DHS’s comments during the rulemaking process, we no longer need to establish an employer-employee relationship or prove traditional supervision or related elements, but the applicant must still primarily perform the duties of the specialty occupation—not just CEO or leadership responsibilities.  So, the role’s job duties should align with the specialty occupation, and leadership tasks should be secondary/minority.  If the company has a board of directors or other governing body, that can be mentioned as an additional oversight factor, though it’s not required.

For the business plan, an organizational chart is useful, but it should be clear that the applicant’s role meets specialty occupation criteria.  Showing the structure of already hired employees or current plans to hire in the near future can help to support that the applicant won’t be spending too much time running the business versus doing their H-1B job.”

To that end, one win-win feature of equity-holder H-1Bs is the chance for the visa beneficiary to extend employment offers to U.S. citizens, similar to investor visa categories like EB-5 that explicitly create jobs.  In fact, showing that new hires will be brought aboard quickly may be vital to a successful petition.  As Joseph observes:

“One key limitation is that these H-1B approvals are capped at 18 months per period, requiring more frequent extensions than a typical H-1B, so business plans should take into account these shortened time frames.  Specifically, hiring the first person in year 2 or 3 might be a bit too late for USCIS’s tastes.  We expect they will be very strict with this category and want to see entrepreneurs pushing to build a business and hire appropriate people in a timely manner.

Monitoring and engaging in discussions with other attorneys in immigration law, it’s clear that many lawyers – despite the language in the regulations and comments – are being cautious and advising owners to have additional staff, believing that an H-1B holder being the sole employee is very likely to spawn a Request for Evidence.  Absent mitigating factors, USCIS may not believe the person could possibly spend the majority of their time doing a specialty occupation job if they also have to do hiring, operations, marketing, and so forth.”

Conclusion

H-1B is a popular visa category, and it’s good to see it evolve to better accommodate entrepreneurs.  Most of the usual limitations remain in play:  specialty role definitions, the nerve-wracking lottery process, and blind scrutiny from USCIS adjudicators.  But for the first time, a new category of prospective immigrant can explore H-1B and use it as a springboard to build a new American company.  At a time like this, that feels like cause for celebration.