H-1B for Founders and Entrepreneurs: Complete Guide 2026

The H-1B visa is frequently associated with engineers hired by large technology companies, but the category also opens an important door for founders and entrepreneurs who want to operate their own startup in the United States. The program’s final modernization rule, effective January 17, 2025, expressly codified the possibility of the beneficiary being a majority owner of the petitioning company, ending a gray area that had persisted for years.

The path is not simple and is not for everyone. It requires formal corporate registration in the United States, documented capital, a genuine employment contract, and compliance with the same specialty occupation requirements that apply to any other H-1B. But for those who qualify, it is one of the few work visa routes that the entrepreneur can build without relying on a willing American employer to sponsor them.

The Concept of Self-Petition Does Not Formally Exist

Technically, the H-1B does not allow self-petition. The program was designed for an American employer to petition on behalf of a foreign employee. The employer-employee relationship is the legal core of the category. What established practice and now the 2025 rule allow is that the petitioning employer may be a company controlled by the beneficiary, provided that the corporate and operational structure forms a legally distinct entity from the individual.

This means the founder acts simultaneously in two roles: as an owner who controls the company and as an employee who receives a salary and fulfills a specific technical function. The separation between the two roles must be real, documented, and defensible before USCIS.

Why a Sole Proprietorship Doesn’t Work

Sole-owner businesses without a separate legal identity — known as sole proprietorships in American law — do not qualify for the H-1B. Because there is no legal separation between the owner and the business, the employer required to petition does not exist. The founder must establish a C-Corporation, an LLC, or another entity that is legally independent from its owners.

The C-Corp tends to be preferred when the company intends to raise institutional investment or operate with multiple owners. The LLC offers more tax flexibility and simplified governance, making it suitable for smaller companies and solo founders. The choice of structure has tax and operational implications that go beyond the H-1B and should be discussed with a corporate attorney in the United States.

The Four Core Requirements

The H-1B for entrepreneurs must meet the same four pillars as any other petition in this category, with adaptations for the context of a founder-owned company.

Bona Fide Job Offer

The company must demonstrate that a real position exists, with a defined technical function, compatible salary, and operational need. Typical documents include a signed employment agreement, detailed job description, organizational chart, business plan, and evidence of operations such as contracts with clients or vendors.

The 2025 rule reinforced that the position must exist at the time of the petition, and must not be a fictitious creation to support the visa. USCIS examines contracts with third parties, projected revenue flow, and organizational structure to verify the reality of the position.

Qualification for Specialty Occupation

The beneficiary must hold a bachelor’s degree (or the equivalent in professional experience) directly related to the position to be performed. For a software company founder, this typically means a background in computer science, engineering, or a related field. For a biotech startup founder, a background in biological sciences or related disciplines.

The experience equivalency follows the 3-to-1 rule: three years of progressive professional experience substitute for one year of formal education. Twelve years of experience can, in theory, substitute for a full bachelor’s degree, but the evaluation must be performed by a recognized credential evaluator.

The Position Must Qualify as a Specialty Occupation

The position itself must require specialized technical knowledge typically obtained through a bachelor’s degree in a specific field. This is the most subjective requirement and the one that most often generates RFEs in entrepreneur petitions. Generic management titles such as CEO or Founder without technical detail typically fail this test. The description must demonstrate that daily duties involve the application of specialized knowledge.

The practical solution is to structure the position around the founder’s technical contribution. Instead of CEO, a title such as Chief Technology Officer with detailed technical responsibilities typically makes a stronger case for specialty occupation.

Ability to Pay the Prevailing Wage

The company must demonstrate the financial capacity to pay the prevailing wage, the benchmark salary set by the Department of Labor for the specific occupation and location. The lookup is performed through the DOL wage library, and the figure varies by experience level (Level 1 through Level 4) and municipality.

For early-stage companies without a strong financial track record, evidence of ability to pay comes from documented capital contributions in the company’s bank account, signed investment agreements with VCs or angels, and revenue projections anchored in executed contracts. USCIS examines the company’s net assets and net income against the offered salary.

Step-by-Step Petition Guide

Step 1: Establish the U.S. Company

The first step is to register a C-Corp or LLC in a U.S. state. Delaware is the preferred state for C-Corps that intend to raise investment, while Wyoming and Nevada are popular for LLCs for tax reasons. Registration involves filing articles of incorporation or articles of organization, obtaining an EIN from the IRS, opening a business bank account, and drafting bylaws or an operating agreement.

Step 2: Structure the Job Offer

Once the company is established, the hiring is formalized through an employment agreement signed between the company (petitioner) and the founder (beneficiary). The agreement must specify the title, detailed job description, salary, benefits, schedule, and terms. Corporate governance documents must reflect that the hiring was approved by the company’s authorized bodies, even if the founder is on both sides of the decision.

Step 3: Capitalization and Salary Determination

The company must have sufficient capital on account to cover not only the founder’s salary but also operating costs. Personal investment, co-founder contributions, angel investor capital, or revenue contracts can form this base. In parallel, the prevailing wage is determined by consulting the DOL library for the specific position and location.

Step 4: Lottery, LCA, and Form I-129

The company registers the founder in the H-1B lottery, which typically takes place in March of each year. If selected, the company files the Labor Condition Application (LCA) with the Department of Labor attesting to the payment of the prevailing wage. After LCA certification, the Form I-129 is submitted to USCIS with the full evidence package: corporate structure, employment contract, job description, beneficiary qualifications, and company financial capacity.

Pathways to Permanent Residence

The H-1B is by nature temporary, with an initial validity of three years, extendable by another three. For entrepreneurs who intend to establish themselves permanently, planning the transition to a green card must begin early. The three main routes that do not require PERM or a sponsoring employer are the most relevant for founders.

EB-1A: Extraordinary Ability

The EB-1A is intended for individuals at the very top of their field. For founders, this means demonstrating sustained international recognition: significant awards, relevant media coverage of the individual or the company, peer review of their work, documented original contributions, and salary substantially above the industry average. It requires neither a job offer nor PERM, but the evidentiary standard is high.

EB-2 NIW: National Interest Waiver

The EB-2 NIW is often the most viable path for founders of innovative startups. The petition must demonstrate three elements established by the Matter of Dhanasar precedent: that the proposed work has substantial merit and national importance, that the beneficiary is well positioned to advance that work, and that, on balance, it is beneficial to the United States to waive the job offer and labor certification requirements.

Founders of startups in strategic areas such as artificial intelligence, biotechnology, semiconductors, clean energy, and cybersecurity find particularly fertile ground for the NIW. USCIS policy published in 2022 and updated in 2024 expressly recognized entrepreneurship as an element that can satisfy the Dhanasar criteria.

EB-5: Immigrant Investor

The EB-5 is the route based exclusively on investment. Following the EB-5 Reform and Integrity Act of 2022, the minimum investment is $800,000 in a Targeted Employment Area (TEA) and $1.05 million outside a TEA, in a company that creates at least ten full-time jobs for American workers. This category is less about the entrepreneur’s personal capabilities and more about the capital invested and jobs created.

For founders who already have personal capital, the EB-5 offers predictability and complete independence from PERM. The typical trajectory combines H-1B in the short term with a transition to EB-5 or EB-2 NIW in the medium term, depending on the pace of company growth.

Victoria Harper

Editor-in-Chief

Meet the author

Leading journalism and editorial content at Visto n’ Visa, Victoria helps make immigration topics clear, trustworthy, and easy to understand. Her focus is on delivering useful, human, and relevant content for people exploring new paths abroad.