Not Every Founder Has to Take the Special "Self-Employment" Path

Client Background

Our client, Mr. Chen, is one of the co-founders of a FinTech startup. The team includes other co-founders and board members, and he is not the sole controlling shareholder. He is also the person responsible for the company's core technology architecture, and the company wanted to file an H-1B petition for him as his employer.

Step 1: Make the "Genuine Employer-Employee Relationship" the Core Logic of the Petition

Mr. Chen's situation is entirely different from "a controlling shareholder employing himself" — because the company has other co-founders and board members who hold real decision-making and oversight authority over his hiring, scope of duties, and compensation. This constitutes a genuine employer-employee relationship, so there was no need to use the special review path designed for self-sponsored controlling founders. We made this the core logic of the entire petition and prepared board resolutions and documents showing that other co-founders held independent signing authority over his employment decision — proving that "the company is employing him."

Step 2: Position Title and Duty Description

Even with a solid employer-employee relationship, the duty description must withstand scrutiny. We positioned Mr. Chen in a technical leadership role and broke down exactly which specialized technical tasks his work involved — such as architecting the payment clearing system and developing risk-control models — duties that map directly to his degree background, ensuring the position meets the "specialty occupation" standard.

Step 3: Funding as Support for Financial Capacity and Company Authenticity

After the company closed its first round of US$500,000 in funding, we made that funding a central piece of supporting evidence: on one hand, it proved the company could pay Mr. Chen the required prevailing wage; on the other, it signaled to the adjudicating officer that this is an entity with real capital operations and external investor backing — not a paper company.

Step 4: A Full Three-Year Validity, No Phased Renewal Planning Needed

Because the case followed the standard employer-sponsored path rather than controlling-founder self-sponsorship, Mr. Chen's H-1B was granted the regular three-year validity directly — he did not have to pre-plan renewal materials on an 18-month + 18-month schedule like self-employed founders. The company has since closed another funding round and continues to grow its team; these will be strong support for future renewals or the green card stage, but they did not affect the three-year period granted in this petition.

Outcome

The H-1B was approved with a full three-year validity. Mr. Chen can now stay in the U.S. steadily as co-founder and technical lead to grow the business, without repeatedly preparing renewal filings on short cycles.

The biggest takeaway from this case: for H-1B cases involving founders, the first step is to determine clearly whether you are "a controlling shareholder self-sponsoring" or "in an employment relationship genuinely supervised by others" — that determination directly decides which review path applies and whether you receive 18 + 18 months or a standard three years. Sorting this out early saves a great deal of unnecessary complexity later.

Understanding the New H-1B Rules: Two Paths — a Founder-Owned Company vs. a Traditional Employer

1. New H-1B Rules: Founders Can Also Apply for H-1B Through Their Own U.S. Company

For founders building a startup in the U.S. who own a U.S. company, there is a noteworthy new H-1B rule: if the founder personally holds a majority of the company's equity or voting power (i.e., a "controlling interest"), the U.S. company may still act as the Petitioner and file an H-1B on their behalf, provided the relevant legal and regulatory requirements are met.

It is important to stress: this is not "an individual filing an H-1B for themselves." Rather, the U.S. company, as an independent employer, offers the founder a genuine position that meets specialty occupation requirements, and the company submits the H-1B as the petitioner. This structure is commonly called a "Beneficiary-Owned Company H-1B" in the industry — not a "self-employed H-1B."

A few reminders:

• If the beneficiary owns more than 50% or holds majority voting power, the special beneficiary-owner rules apply;

• The initial approval and the first extension are each capped at 18 months; thereafter, extensions remain available under the general H-1B requirements;

• Approval still depends on whether the company has genuine operations, whether the position meets specialty occupation requirements, whether the wage is compliant, and whether the equity and governance structure is clear — it is not a matter of "just incorporate a company."

2. The Regular / Traditional H-1B

For the vast majority of professionals, the H-1B still follows the traditional path: a U.S. employer files the petition, offering a specialty occupation position to a qualified foreign professional, and that employer acts as the Petitioner.

Common qualifying positions include software engineers, AI/machine learning engineers, data scientists, financial analysts, engineers, architects, researchers, accountants, and certain roles in healthcare, education, and other professional fields.

A traditional H-1B petition generally requires all of the following: a genuine position offered by a U.S. employer; the position meeting specialty occupation requirements; the beneficiary's education and experience matching the position; wages and working conditions meeting prevailing wage requirements; and completion of the required procedures. Because H-1B numbers are subject to an annual cap, most applicants must first go through the H-1B lottery (registration and selection) and can only file formally after being selected.

Whether through a founder-owned company or a traditional employer sponsoring a professional, approval always requires a case-by-case analysis of the position, educational background, and company circumstances. If you are building a startup, planning to set up a U.S. company, or considering an employer-sponsored H-1B, feel free to contact us for an individual assessment.

This article is for general informational purposes only and does not constitute legal advice or an engagement relationship. Please refer to current regulations and USCIS policy, and consult a professional immigration attorney.