The Department of Homeland Security (DHS) has introduced new Biden Administration regulations to improve H-1B pathways for entrepreneurs and startup founders, effective on 1/17/2024. These updates aim to encourage foreign talent to contribute to the U.S. economy by clarifying and expanding access for beneficiary-owned businesses while maintaining the integrity of the H-1B program.
Entrepreneurs as H-1B Petitioners
- Effective January 17, 2024, DHS will accept petitions from entrepreneurs who own a controlling interest in a U.S. business and who wish to sponsor themselves for H-1B visas through their companies.
- This change seeks to reduce barriers for foreign-born entrepreneurs to establish businesses in the U.S., fostering innovation, job creation, and economic growth.
Clarification on Employer-Employee Relationship
- The updates define a “United States employer” as including beneficiary-owned businesses, provided certain conditions are met.
- Conditions may include demonstrating a bona fide job opportunity, performing specialty occupation duties the majority of the time, and meeting shortened petition validity periods to ensure compliance.
Flexibility in Non-Specialty Duties
- Entrepreneurs can perform some non-specialty occupation tasks (e.g., pitching to investors, negotiating contracts) as long as specialty occupation duties remain the majority focus.
- This recognizes the diverse responsibilities entrepreneurs face when managing startups.
Safeguards Against Abuse
- To prevent misuse of the H-1B program, DHS introduced conditions such as the “majority of the time” requirement and shorter initial petition periods for beneficiary-owned businesses.
- The initial H-1B petition will only be approved for 18 months.
DHS has indicated that it will continue refining the program to balance flexibility for entrepreneurs with safeguards to maintain program integrity. Whether or not the Trump administration also sees promoting immigrant entrepreneurship as a worthy goal for the United States in its global leadership role remains to be seen.
Should you have any questions or concerns, please reach out to your contact at Younossi Law for further information and/or a consultation.
