Understanding the New H-1B Visa Beneficiary Owners Rule

The H-1B visa is a non-immigrant work visa that allows U.S. employers to hire foreign workers in specialty occupations requiring theoretical or technical expertise. It is a highly sought-after visa, particularly in fields such as information technology, finance, engineering, and healthcare. This article will explore the H-1B visa process, with a special focus on the beneficiary owners’ rule, which plays a crucial role in determining visa eligibility.

What is the H-1B Visa?

The H-1B visa is designed for skilled professionals with at least a bachelor’s degree (or equivalent work experience) who are offered employment by a U.S. company. It is valid for an initial period of three years, with the possibility of an extension up to six years.

The U.S. Citizenship and Immigration Services (USCIS) places an annual cap on H-1B visas, currently set at 65,000, with an additional 20,000 reserved for applicants with a U.S. master’s degree or higher. The selection process operates through a lottery system due to high demand.

The Beneficiary Owners Rule

One of the key considerations for H-1B eligibility is whether the employer-employee relationship meets USCIS requirements. The beneficiary owners rule comes into play when the visa beneficiary (the foreign worker) has an ownership stake in the petitioning company. This rule is particularly relevant for entrepreneurs or foreign professionals who want to work for a company in which they hold significant equity.

Key Factors in the Beneficiary Owners Rule

1. Control and Employer-Employee Relationship – The petitioning company must demonstrate that it has the right to control the beneficiary’s work, including hiring, firing, and oversight of job duties. If the beneficiary is a majority owner or has significant influence over the company’s decisions, USCIS may determine that a valid employer-employee relationship does not exist.

2. Third-Party Evidence – The employer may be required to provide additional documentation, such as board resolutions, employment agreements, or other governance structures, to show that the beneficiary is under company authority.

3. Proof of Specialty Occupation – The position offered must require specialized knowledge and at least a bachelor’s degree in a relevant field.

For companies owned by an H-1B beneficiary, proper structuring of control mechanisms (e.g., independent board oversight or employment contracts) is essential to meeting USCIS criteria.

How to Obtain an H-1B Visa

Step 1: Employer Sponsorship

A U.S. employer must offer a job in a specialty occupation and agree to sponsor the H-1B visa petition.

Step 2: Labor Condition Application (LCA)

The employer must file an LCA with the Department of Labor (DOL), attesting that:

• The beneficiary will be paid the prevailing wage.

• Hiring the foreign worker will not negatively impact U.S. workers.

Step 3: Filing the H-1B Petition

Once the LCA is certified, the employer files Form I-129 (Petition for a Nonimmigrant Worker) with USCIS. Supporting documents include:

• Proof of the specialty occupation

• The beneficiary’s educational credentials

• Employer-employee relationship evidence

Step 4: Lottery Selection (if applicable)

If subject to the annual cap, the petition is entered into the H-1B lottery. If selected, the employer submits the petition on behalf of the beneficiary. USCIS reviews the petition and may request additional evidence.

Step 5: USCIS Approval & Visa Stamping

If the petition is approved, the beneficiary must apply for an H-1B visa at a U.S. consulate in their home country. Upon approval, they can enter the U.S. and begin employment.

Conclusion

The H-1B visa offers a valuable pathway for skilled professionals to work in the United States, but the beneficiary owners rule adds an extra layer of scrutiny for those with an ownership stake in the petitioning company. By ensuring a legitimate employer-employee relationship and adhering to USCIS requirements, businesses and entrepreneurs can successfully navigate the H-1B process and secure work authorization in the U.S.