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IMMIGRATION APRIL 07, 2023 | The Indian Eye 40

Pathways for Terminated H-1B Workers

Who Want to Become Entrepreneurs

CYRUS D. MEHTA & ny. Whichever option laid and how the beneficiary lishing an employer-employ- beneficiary’s field of study
JESSICA PASZKO* off beneficiaries pursue; they performed the job. Neufeld ee relationship with the peti- which may done by submit-
have 60 days to get their af- urged USCIS officers to tioning U.S. employer. Here, ting a detailed description of
he list of options for fairs in order under 8 C.F.R. consider eleven factors in the sole or majority owner of the specific duties of the po-
an H-1B beneficiary § 214.1(l)(2) which allows determining whether a peti- the petitioning company may sition, written opinions from
Twho has been laid off H-1B beneficiaries to remain tioner had sufficiently estab- be able to establish a valid experts in the field, resources
is often narrow. At the top of in the U.S. for up to 60 days lished its “right to control”. employer-employee rela- describing the degree fields
the list sits the most obvious after their H-1B employment Despite the Neufeld Memo, tionship if the facts show that normally associated with
option: find another employ- ceases. we still entertained, in our the petitioning entity meets the occupation, or evidence
er who will sponsor you for The last time we ex- blog, the idea of whether a at least one of the “hire, pay, that similar companies in
an H-1B. Although, in the plored the topic of H-1B en- startup owner can be able to fire, supervise, or otherwise the industry require similar
current job market, which is trepreneurs, the control test get sponsored on an H-1B control the work of” factors. degrees for similar positions.

growing more competitive in the Memo “Determining through a startup, while si- Old decisions recognize the USCIS could likely challenge
due to the influx of laid off Employer-Employee Rela- multaneously addressing the separate existence of the whether a position in a start-
employees, there simply may tionship for Adjudications potential obstacles that one corporate entity as separate up, where the beneficiary
not be enough open posi- of H-1B Petitions, Includ- might experience in attempt- and distinct legal entity from may be wearing many hats,
tions to fill. But laid off H-1B ing Third-Party Site Place- ing such a feat. its owners and stockholders. can support a specialized po-
beneficiaries who can’t find ments” by Donald Neufeld Now, ten years after that See Matter of M, 8 I&N Dec. sition.
another employer to spon- posed an obstacle. The blog was published, changes 24, 50 (BIA 1958, AG 1958); The H-1B visa law re-
sor them and who have been Neufeld Memo attempted have occurred in immigra- Matter of Aphrodite Invest- quires the petitioner to
dreaming of setting up their to clarify what constitutes tion policy that contemplate ments Limited, 17 I&N Dec. demonstrate that a bach-
own startups may not need a valid employer-employee scenarios in which entre- 530 (Comm.1980); and Mat- elor’s degree in a special-
to pack their bags and book relationship under 8 C.F.R. preneurs can remain in the ter of Tessel, 17 I&N Dec. ized field is the minimum
their flights home just yet § 214.2(h)(4)(ii) and estab- U.S. on an H-1B through 631 (Act. Assoc. Comm. qualification for entry into
as there might be another, lished a policy wherein H-1B their startup or be paroled 1980). As such, a corpora- that occupation. Lastly, the
more creative option to con- petitioners had to establish into the U.S. to set up their tion, even if it is owned and fourth requirement is that an
sider: starting your own com- that they had the right to start-ups. For starters, on operated by a single person, H-1B visa number be avail-
pany and extending H-1B control over when, where June 17, 2020, the Neufeld may hire that person, and the able at the time of filing the
status through that compa- Memo was rescinded, parties will be in an employ- petition, unless the petition
effectively ending the er-employee relationship. is exempt from numerical
“right to control” era. This point needs to be limits, though the topic of
Instead, in assessing brought out when advancing this blog assumes that one
whether an employee an H-1B for an entrepreneur has already been counted
and a beneficiary have when Neufeld has been re- against the cap. Notably,
an employer-employ- scinded. Still, we acknowl- this new guidance does not
ee relationship, USCIS edge that the H-1B petition seem to elevate control over
officers were instructed may have more success when all the other components in
to consider whether the there is another investor or the employer-employee re-
petitioner has estab- shareholder, and the benefi- lationship under 8 C.F.R. §
lished that it meets at ciary is not the sole owner of 214.2(h).
least one of the “hire, the entity. That person may There are other chal-
pay, fire, supervise, or be able to exercise control lenges for an H-1B entre-
otherwise control the over the H-1B beneficiary, preneur that may be beyond
work of” factors with re- even if they have a minority the USCIS’s control. Every
spect to the beneficiary. interest. It may not be nec- H-1B petition must be ac-
See 8 C.F.R. § 214.2(h) essary to show that the other companied by a certified La-
(4)(ii). Most recently, on individual or entity has the bor Condition Application
March 10, 2023, USCIS power to discipline the ben- (LCA) from the DOL. Un-
issued comprehensive eficiary, but only that this der an LCA, the employer
guidance on parole for person can exercise negative attests that it must pay the
international entrepre- control over the beneficiary’s beneficiary the higher of the
neurs. decisions. prevailing or actual wage,
USCIS has also pro- There is nothing pre- and must also do so on a
m of vided FAQs where it ad- venting the other individual regular prorated basis. In a
dresses parole pathways
from being a family member, startup, there may be no rev-
CYRUS D. MEHTA & PARTNERS PLLC for entrepreneurs under and the shareholder or direc- enue stream to pay the entre-
the International En- tor also need not be residing preneur initially. Thus, un-
trepreneur Rule, a top- in the U.S. less the startup is sufficiently

ic that is not the focus The second requirement capitalized through venture

  of this blog, but which is establishing that the job capital or other forms of fi-
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­ also touches on the key qualifies as a specialty oc- nancing that can ensure a
€
‚   requirements that one cupation under one of the steady stream of income to
must fulfill to qualify four criteria under 8 C.F.R. § the H-1B beneficiary at the
for classification as an 214.2(h)(4)(iii)(A). The third required wage, the petition-
requirement is establishing ing entity may be in violation
H-1B specialty occupa-
tion worker. The first that the job is in a specialty of the DOL rules if it cannot
2 6th Floor requirement is estab- occupation related to the guarantee a regular prevail-

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