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IMMIGRATION JANUARY 24, 2025 | The Indian Eye 36
Biden’s USICS Welcomes
Entrepreneurs Through the H-1B and
O Visas. Will Trump Do the Same?
BY CYRUS D. MEHTA AND point was more ambiguous control the O-1’s employ- which an entrepreneur could obtain visas through their
previously, which created ment by requiring a majority qualify for H-1B classifica- startups. While it would be
KAITLYN BOX*
concerns that an O petition shareholder or a board of tion. Even under the existing ideal if Congress enacted
filed through a beneficia- directors. USCIS seems to regulations, it was possible a startup visa, it is at least
n January 8, 2025, ry’s own company would be have relied on old adminis- for a startup founder or en- a good start for USCIS to
USCIS issued up-
Odated guidance in viewed as tantamount to trative decisions that recog- trepreneur to qualify for create pathways within the
self-employment. This up-
H-1B classification if the pe-
existing nonimmigrant visa
nize the separate existence of
its Policy Manual clarifying dated guidance will afford the corporate entity as sepa- titioning company could es- system for entrepreneurs. It
how entrepreneurs may qual- a clear pathway for entre- rate and distinct legal entity tablish a valid employer-em- is hoped that the new Trump
ify for O visas. The guidance preneurs to obtain O-1 visas from its owners and stock- ployee relationship under at administration continues
states that: through their own compa- holders. See Matter of M, 8 least one of the “hire, pay, down the same pathway.
“O beneficiaries may
not petition for themselves. nies. Interestingly, the new I&N Dec. 24, 50 (BIA 1958, fire, supervise, or otherwise Entrepreneurs should be en-
guidance appears to apply to AG 1958); Matter of Aphro-
control the work of” factors, couraged to come to the US
However, a separate legal all O beneficiaries and not dite Investments Limited, 17 and the job qualifies as a spe- to establish startups that may
entity owned by the benefi- merely those who qualify for I&N Dec. 530 (Comm.1980); cialty occupation under one succeed, and create more
ciary, such as a corporation O-1 classification. This guid- and Matter of Tessel, 17 of the four criteria under 8 jobs and new business mod-
or limited liability company, ance also does not require I&N Dec. 631 (Act. Assoc. C.F.R. § 214.2(h)(4)(iii)(A). els that break the paradigm,
may file the petition on their such startups to meet condi- Comm. 1980). An entrepreneur who was which in turn will result in
behalf.” tions such as their ability to USCIS’ updated O-1 able to meet these require- economic growth and create
USCIS’ guidance on this
guidance is in line with ments through his or her own even more jobs. There are
a provision in the De- company would have been el- many Trump advisors, as well
partment of Homeland igible for H-1B classification some on the left like Bernie
Security (DHS)’s H-1B for an initial 3 year period, as Sanders, who view nonim-
modernization final rule well as a subsequent 3-year migrants on work visas as
(see our commentary), extension. Although the final a threat to US workers and
set to take effect on Jan- rule more clearly states that a want to curb lawful nonimmi-
uary 17, 2025. In the fi- beneficiary with a controlling grant pathways to the United
nal rule, DHS clarified interest in the petitioning or- States. They are misguided,
that beneficiaries with ganization may nonetheless and it is hoped that they re-
a controlling ownership be eligible for H-1B classifi- alize the benefits that non-
interest in the petition- cation, it limits the validity of citizen entrepreneurs bring
ing entity may still be the initial H-1B petition and to the US and should not kill
eligible for H-1B status first extension to 18 months the goose that lays the gold-
subject to “reasonable each. en eggs!
conditions”. In a previ- It is indeed salutary that *Kaitlyn Box is
ous blog, we explored the USCIS is thinking of en- a Partner at Cyrus D. Mehta
the conditions under couraging entrepreneurs to & Partners PLLC.
________________________________________________________________________________________
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing
Partner of Cyrus D. Mehta & Partners PLLC in New York City. Mr. Mehta is a member of AI-
LA’s Administrative Litigation Task Force; AILA’s EB-5 Committee; former chair of AILA’s Ethics
m of Committee; special counsel on immigration matters to the Departmental Disciplinary Committee,
CYRUS D. MEHTA & PARTNERS PLLC Appellate Division, First Department, New York; member of the ABA Commission on Immigra-
tion; board member of Volunteers for Legal Services and board member of New York Immigration
Coalition. Mr. Mehta is the former chair of the Board of Trustees of the American Immigration
Council and former chair of the Committee on Immigration and Nationality Law of the New
York City Bar Association. He is a frequent speaker and writer on various immigration-related
issues, including on ethics, and is also an adjunct professor of law at Brooklyn Law School, where
he teaches a course entitled Immigration and Work. Mr. Mehta received the AILA 2018 Edith
Lowenstein Memorial Award for advancing the practice of immigration law and the AILA 2011
Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation
in the immigration field. He has also received two AILA Presidential Commendations in 2010 and
2016. Mr. Mehta is ranked among the most highly regarded lawyers in North America by Who’s
2 6th Floor Who Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and Cham-
bers Global 2019 in immigration law, among other rankings.
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