Can My Company Sponsor My Own H-1B?

The tough job market makes increasingly difficult for foreign students to secure post graduate employment from companies who are willing to sponsor work visas. Many entrepreneurial minded students ask me how likely their labor certificates are to be approved by Department of Labor (DOL) if they have some “ownership” in the companies that sponsor their work visas. Will they be considered as “investors” or “employees” for the visa purpose?

“Investor” usually includes anyone that has a capital interest in the company. A sole shareholder of a corporation or limited partnership rarely works. A Corporation is a more suitable type of business for that purpose on behalf of employee/owners. For instance, a Board of Directors that has the power to remove executives allows the DOL to be convinced that a position may be available to U.S. workers. There is no magical percentage of ownership that would guarantee a successful labor certification.

There also has to be a bona fide job opportunity. The corporation cannot be set up as a scheme or sham for foreign entrepreneur to procure a labor certification. In addition, the foreign employee/owner’s skills cannot be so integral to the company’s operations that the company would cease to exist but for the employee/owner’s participation. Furthermore, the foreign employee/owner’s degree of control over the business is also a factor. Basically, if his ownership interest and control over the management of the company is too great, it is suspected that a bona fide job offer cannot exist for a U.S. worker. The Labor Certificate will probably fail.

These are the typical questions about the foreign employee/owner that need to be addressed:

1. Is he in the position to control hiring decisions regarding the job for which certification is sought?

2. Does he have an ownership interest in the company?

3. Is he involved in the management of the company?

4. Is he on the Board of Directors of the company?

5. Is he one of a small number of employees?

6. Are his services so indispensable to the employer that the business would likely cease to exist without him?