H1B Visa Lawyer – Memo on Employer-Employee Relationship and impact on H-1B Entrepreneurs/Job Creators

The U.S. Citizenship and Immigration Services (USCIS) issued a memo dated January 8, 2010 that has great importance for the IT consulting industry and H1B filers in general. This memo specifies how USCIS personnel should determine the existence of the required employer-employee relationship when adjudicating H1B petitions. The memo, issued by Associate Director of Service Center Operations, Donald Neufeld, provides guidance regarding the type of evidence that sufficiently confirms the existence of an employer-employee relationship between an H1B-petitioning employer and the beneficiary. We have posted an article on this issue in the past, click here for more details.

In this post we will focus on H-1B Entrepreneurs/Job Creators. The Neufeld Memo contains additional language that completely undermines a business owner’s ability to be an H-1B beneficiary. This thrust against owner-beneficiaries can foreclose opportunities, not only for the potential new businesses that could be created by H-1B entrepreneurs, but also for the numbers of U.S. workers who would otherwise be employed by those businesses.

No matter how many others are employed by an entrepreneur’s enterprise, the owner of such a business will not be eligible for an H-1B visa even if (1) a viable corporation is established; (2) there is no third-party placement; (3) the corporate petitioner pays the beneficiary; (4) the corporate petitioner claims the beneficiary for tax purposes, and (5) the beneficiary produces goods or services tied directly to the petitioner’s business.

It is no answer to say that such entrepreneurs can rely on E-2 visas, as these are not available for all countries, or on EB-5 visas, which require very large investments. When the government should be committed to policies that help job creation, USCIS adopts a policy that does the very opposite. Nothing in existing law or regulation compels such a result.