Freelancing on H-1B Visa: Is It Possible?

Many professionals interested in working in the United States on an H-1B visa wonder if they can function as independent contractors or freelancers. This article explores the intricacies of freelancing on an H-1B visa and the conditions under which it's practically achievable.

Overview of H-1B Visa Regulations

The H-1B visa is an employment-based visa that requires sponsorship by a U.S. employer. The primary requirement is that the employer assumes responsibility for the visa application process, including verifying your qualifications and ensuring compliance with U.S. labor laws. Self-employed individuals or independent contractors do not fall under the H-1B sponsorship framework, as H-1B is designed to accommodate only employer-employee relationships.

Self-Employment and H-1B Visa

It is not permissible to become self-employed while holding an H-1B visa. This is because the visa is conditional upon a specific employer-employee relationship with a sponsoring employer who ensures that you are working in a specialized or professional occupation. If you seek to operate as an independent consultant or freelancer, you would need to find an employer who is willing to sponsor you. Otherwise, your visa status will be in violation, and it may be subject to revocation.

Establishing an Employer-Employee Relationship Through a Company

While it is not straightforward, it is theoretically possible to set up a company to qualify for an H-1B visa under certain conditions. One key requirement is the formation of a genuine employer-employee relationship. This involves several steps:

1. Establishing the Employer-Employee Relationship

For the H-1B visa to be granted, your company must demonstrate an employer-employee relationship. This means that your company is responsible for hiring, firing, supervising, and controlling your work. Several conditions must be met:

Clear distinction between the ownership and control of your company. Your company has someone other than you (such as a board of directors, investors, or preferred shareholders) who has the authority to manage and control your work. Your company must have the capability to hire, fire, supervise, and control your work.

Relevant considerations for establishing a separation between ownership and control within a consulting firm may include:

Your company pays your salary. Your company determines your work location and relocation assignments. Your company performs supervisory duties such as conducting performance reviews, training, and counseling.

2. Bona Fide Corporate Purpose

Your company must be established with a valid and legitimate business purpose. If USCIS determines that your company was merely created to sponsor your H-1B visa, the application may be denied. Similarly, if you are the main investor and the company might go bankrupt if you were fired, it could also face complications.

To prove the distinction between your ownership and control, you must provide documentary evidence such as:

By-laws Stock purchase agreement Shareholder agreement Operating agreement Job offer letter Employment contract between you and your company Investor rights agreement Description of the performance review process

3. Compliance with General H-1B Requirements

Your company must adhere to all other general H-1B requirements, including special occupational requirements and the required wage rate. Once the H-1B petition is filed, USCIS will examine the totality of the evidence to determine if a genuine employer-employee relationship exists and will be maintained.

Conclusion

Freelancing on an H-1B visa is generally not feasible, but there are potential pathways through the establishment of a company that meets the necessary criteria. It is crucial to consult with an experienced immigration attorney to navigate the complexities involved in this process.