Start Your Own H-1B Sponsor! File Change of Employer within 7 working days!

H-1B nonimmigrants can create a corporation or a 501(c)(3) tax-exempt organization to file LCA and I-129 petition to preserve legal status.

H-1B nonimmigrants can create their own corporation, or a 501(c)(3) tax-exempt organization, to file the ETA-9035 LCA and I-129 petition for a "change of employer" to preserve their legal status on a part-time basis, immediately after 7 working days. The 30 days notice and 10 days posting is for U.S. workers only. Each nonimmigrant will be the sole employee, in a specialty occupation, so this requirement doesn't apply.

Excerpt from ruling, "The Administrative Appeals Office (AAO) finds that the petitioner has overcome the concerns of the director regarding whether an employer-employee relationship with respect to employees exists, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee.

At page 531, Matter of Aphrodite Investments Limited unequivocally states the following: In Matter of M-, 8 I&N Dec. 24 (BIA 1958; A.G. 1958), precedent was established which held that the sole stockholder of a corporation was able to be employed by that corporation as the corporation has a separate legal entity from its owners or even its sole owner. .. The AAO will not overturn or disregard clear and established precedent."

NOTE: Who is an H-1B employer?

An H-1B employer is any entity (person, firm, corporation, contractor, or other association or organization) which files (1) a Labor Condition Application (LCA) (Form ETA 9035 and/or ETA 9035E) with the Department of Labor’s Employment and Training Administration and (2) a Petition for a Nonimmigrant Worker (Forms I-129/I-129W) on behalf of an H-1B nonimmigrant with the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) (formerly the Immigration and Naturalization Service). This definition applies in all situations, whether or not the H-1B employer is H-1B-dependent.

USCIS is rescinding the following policy memoranda and issuing updated policy guidance in their place:

• Determining Employer-Employee Relationship for Adjudication of H-1B Petitions,Including Third-Party Site Placements (Reference AFM Chapter 31.3(g)(16)), HQ 70/6.2.8 (AD 10-24), issued January 8, 2010;1 and

• Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites, PM-602-0157, issued February 22, 2018.2

The new guidance contained in this policy memorandum and the rescission of prior memoranda is effective immediately.

USCIS officers should not apply the above-listed memoranda to any pending or new requests for

H-1B classification, including motions on and appeals of revocations and denials of H-1B

classification.

A. Employer-Employee Relationship

1. Should an officer consider an H-1B petitioner and an H-1B beneficiary to have an employer-employee relationship if they meet only ONE of the “hire, pay, fire, supervise, or otherwise control the work of” factors under 8 CFR 214.2(h)(4)(ii)?

The officer should apply the existing regulatory definition in assessing whether an employer and a beneficiary have an employer-employee relationship. The officer should consider whether the petitioner has established that it meets at least one of the “hire, pay, fire, supervise, or otherwise control the work of” factors with respect to the beneficiary. H-1B petitioners are required to submit a Labor Condition Application (LCA) and a copy of any written contracts between the petitioner and the beneficiary, or a summary of the terms of the oral agreement if a written contract does not exist.4 Depending upon the content of such documentation, it may establish the employer-employee relationship. The officer may not apply the prior rescinded guidance.

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