USCIS FAQ Excerpts

Q. I have a controlling interest in a company. Can this company qualify as my petitioning employer to sponsor my H-1B status?

A. A company in which you have a controlling interest – meaning, you own more than 50% or have majority rights – may qualify as your employer and may petition for H-1B status on your behalf. In this scenario you would be both an owner of the petitioning employer and a beneficiary of the petition (a “beneficiary owner”).

Previously, more restrictive requirements on employer-employee relationships between H-1B petitioners and beneficiaries may have resulted in H-1B beneficiary owners being ineligible. However, in 2020 we rescinded the 2010 policy memorandum, “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements,” which impacted such eligibility. See the?USCIS Policy Memorandum?(PDF, 379.71 KB).

The?Oct. 23, 2023, Notice of Proposed Rulemaking (NPRM), Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers,?proposed?to codify the ability of beneficiary owners to obtain H-1B status. We continue to consider comments in response to this NPRM. However, beneficiary owners may already be eligible for H-1B status under existing regulations and policies. You must still be coming temporarily to the United States to perform services in a specialty occupation. Additionally, Department of Labor requirements related to labor condition applications, including requirements concerning the appropriate prevailing wage and wage level, still apply.

The United States remains a destination for top talent around the world. Our ability to attract and retain entrepreneurs is essential for spurring innovation, job creation, and new industries and opportunities for all Americans. We encourage entrepreneurs to use the H-1B program, or other appropriate pathways, to live and work in the United States. See?Options for Noncitizen Entrepreneurs to Work in the United States.

Q. What happens if my H-1B status expires while I have a pending application to change to another nonimmigrant status?

A. A pending application to change status (Form I-129, Petition for a Nonimmigrant Worker,?or?Form I-539, Application to Extend/Change Nonimmigrant Status)?does?not?provide lawful immigration status. However, you may be in an authorized period of stay during the period when a timely filed nonfrivolous application to change status is pending with USCIS.?If we approve your timely-filed application to change status, the start date for your new nonimmigrant status is effective on the date of approval. If there is a gap of time between the expiration date of your H-1B status and the start date of your new status, we consider you to have continued?to maintain a lawful status?as long as you timely filed the change of status (COS) application, we granted the request to change status, and?you did not violate any terms and conditions of your H-1B status.

If your request to change status was not filed on time – in other words, if it was not filed before the end of your H-1B status -- then we, in our discretion and under certain conditions, may excuse the failure to timely file if the delay was due to extraordinary circumstances beyond your control. If we approve the late filed change of status application, the change of status takes effect on the approval date. In this scenario, we will consider you to have maintained lawful status during the excused period. See the?USCIS Policy Manual.

If we deny the application to change status, whether it was filed on time or not, you will be considered to have been out of valid status as of the expiration date of your H-1B status (your I-94 expiration date).

Q. My employer filed a?Form I-140 immigrant worker petition on my behalf. What happens if I leave my job, or if my employer withdraws the Form I-140? Will I retain my priority date? Am I still eligible to adjust status?

A. First, let’s assume that your priority date is not yet current (meaning it is not earlier than the applicable cutoff date in the Visa Bulletin).

Starting from the moment that the Form I-140 filed on your behalf is approved:

• Your priority date is generally locked in for use in subsequently filed Form I-140 petitions (also known as priority date retention). The only way you can lose your priority date is if the I-140 approval is revoked on certain grounds such as agency error, fraud, or willful misrepresentation of a material fact.
• If you are otherwise eligible for H-1B status, this I-140 approval may be the basis to extend your H-1B status beyond the general 6-year period of admission limitation, in up to 3-year increments.
• Your spouse, if in H-4 nonimmigrant status or seeking a change of status to H-4 nonimmigrant status, would be eligible to apply for an Employment Authorization Document.

Within 180 days of the Form I-140 approval, if your employer withdraws the I-140 petition approval that was filed on your behalf, USCIS is obligated to automatically revoke the I-140 approval. You would not lose your priority date, but you would need a new basis in order to extend your H-1B status beyond the general 6-year limitation and ultimately adjust status.

After the Form I-140 filed on your behalf has been approved for at least 180 days, however:

• Even if your employer withdraws the Form I-140 approval, USCIS would not revoke the I-140 approval for that reason alone. You would continue to have an approved I-140, and would continue to be eligible for H-1B extensions beyond the general 6-year limitation if you are otherwise eligible for H-1B status. USCIS would only revoke the I-140 approval on certain grounds such as agency error, fraud, or misrepresentation of a material fact. You would, however, need a new basis on which to seek adjustment of status.

Next, let’s assume that your priority date becomes current, you have an approved I-140, and you properly file?Form I-485 (the application to adjust status).

• Once your Form I-485 has been pending for 180 days, you can “port” the offer of employment in the Form I-140 approval to a new job offer (same or different employer) as long as the new job offer is in a “same or similar” occupational classification when compared to the job offer in the Form I-140 petition. The new employer does not have to submit a new I-140 on your behalf, although you would need to file a “Supplement J” to request this job portability. (Technically, you can submit a Supplement J to port a pending I-140 even before it’s approved, but this scenario is less common. See the relevant?form instructions (PDF, 323.82 KB) on when you must submit a Supplement J.)

Finally, let’s consider one alternative scenario: More than 365 days have passed since the filing of a?PERM labor certification application or a Form I-140 petition on your behalf:

• You are eligible to extend your H-1B status beyond the general 6-year limitation, in up to 1-year increments. (As described above, the 3-year increments are only possible with an approved I-140 and a priority date that is not current.)? Thus, even if you are not eligible for the up to 3-year extension because your priority date is current, you may still be eligible for extensions in increments of up to 1 year if at least 365 days have passed since the filing of the PERM labor certification application or Form I-140 petition (or other employment-based immigrant petition, such as Form I-360) on your behalf.
• Your spouse, if in H-4 nonimmigrant status or seeking a change of status to H-4 nonimmigrant status, would be eligible to apply for an Employment Authorization Document if you have been granted an extension beyond the end of the general 6-year limitation on this basis.

Q. I have an approved Form I-140 but I know I will be waiting a long time for an immigrant visa to become available. Do I need to be the beneficiary of a valid, approved Form I-140 for the whole time I’m waiting?

A. You are not required to be the beneficiary of a valid, approved Form I-140 for the entire time you are waiting for an immigrant visa to become available. Generally, your first approved Form I-140 establishes your priority date. You do need a valid Form I-140 once an immigrant visa becomes available and you file your Form I-485, but it does not need to be the same I-140 that you used to establish your priority date.

In other words, an H-1B worker could establish their priority date with an approved I-140 from Employer A, then use H-1B petition portability to work for a number of other employers who do not file an I-140, and ultimately apply to adjust status based on a second approved I-140 from Employer Z (or use the approved I-140 from Employer A to “port” to a same or similar job offer from Employer Z, if eligible).

Please see the previous Q&A for more details about these scenarios.

See the entire FAQ

https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/faqs-for-individuals-in-h-1b-nonimmigrant-status