Founders on F-1, OPT or other visas often ask whether their own startup can sponsor them. Since the H-1B modernization rule took effect on January 17, 2025, the answer is yes, with conditions. The regulation now says that if the H-1B worker "owns more than 50 percent of the petitioner or has majority voting rights in the petitioner," the worker "may perform duties that are directly related to owning and directing the petitioner's business as long as the beneficiary will perform specialty occupation duties a majority of the time" (8 CFR 214.2(h)(4)(ii), eCFR).
As of October 26, 2026, this route is open, but it carries shorter approvals and real payroll obligations. This guide explains each requirement.
- A US employer can now be a company in which the H-1B worker owns more than 50 percent or holds majority voting rights.
- A controlling owner may do business-running duties only if specialty occupation duties take a majority of the time.
- The initial approval and the first extension for a beneficiary-owned company are each limited to up to 18 months.
- The company needs a bona fide job offer, a US legal presence and an IRS tax ID; remote work in the US is allowed.
- The company must pay the founder the required wage, the higher of the actual and prevailing wage, through payroll.
- Founder H-1Bs are still subject to the cap and lottery unless the employer is cap-exempt.
What makes a startup a valid H-1B employer?
The company has to meet the regulatory definition of a "United States employer." It must have "a bona fide job offer for the beneficiary to work within the United States, which may include telework, remote work, or other off-site work within the United States," must have "a legal presence in the United States and is amenable to service of process in the United States," and must have an IRS tax identification number (8 CFR 214.2(h)(4)(ii), eCFR).
The rule published at 89 FR 103054 replaced the older requirement to show an employer-employee relationship, which had made founder petitions very difficult. A bona fide job offer still needs evidence: an operating company, a real role and the means to pay for it.
How much time can you spend running the company?
Less than half. The majority-of-time rule means the founder's job must still be mainly specialty occupation work. A technical founder who spends most of the week on engineering or research, with the rest on investor meetings and management, fits the rule. A founder whose job is mostly fundraising, sales and operations does not, because those duties are not the specialty occupation in the petition.
The specialty occupation test applies in full: the role must require a bachelor's degree or higher "in a directly related specific specialty, or its equivalent" (8 CFR 214.2(h)(4)(ii), eCFR), and the founder must hold that degree or its equivalent.
How long are founder H-1B approvals?
Shorter than usual at first. "The initial approval of a petition filed by a United States employer in which the H-1B beneficiary possesses a controlling interest... will be limited to a validity period of up to 18 months," and "the first extension (including an amended petition with a request for an extension of stay) of such a petition will also be limited to a validity period of up to 18 months" (8 CFR 214.2(h)(9)(iii)(E), eCFR).
| Petition | Maximum validity for a beneficiary-owned company |
|---|---|
| Initial approval | Up to 18 months |
| First extension or amended petition with extension | Up to 18 months |
That means a founder will face USCIS review of the company's progress roughly every year and a half in the early stage, so the business needs to be operating as the first petition described.
Why does DHS treat founders differently?
Because it sees a risk of abuse. In the preamble to the final rule, DHS rejected the argument that the provision amounts to self-sponsorship, but said the majority-of-time rule and the shortened validity periods "are meant to act as safeguards and to better ensure that the beneficiary will be employed in a specialty occupation in a bona fide job opportunity" (89 FR 103054).
The same rule codified USCIS's authority to conduct site visits and clarified that "refusal to comply with site visits may result in denial or revocation of the petition" (same). For a small startup, that means the office or remote setup, the founder's actual work and the payroll should all match what the petition says. A virtual address with no operations behind it is the kind of gap a site visit exposes.
Do you have to pay yourself?
Yes, and this is where many founder plans fail. The employer attests on the labor condition application that "for the entire period of authorized employment, the required wage rate will be paid," meaning "the greater of the actual wage rate... or the prevailing wage" (20 CFR 655.731(a), 2025 edition).
The wage has to be real payroll. Cash wages count only if they are shown in payroll records, paid "cash in hand, free and clear, when due," and reported to the IRS with withholding (20 CFR 655.731(c)). Equity does not replace salary. If there is no work for a period because of a business decision, the wage is still owed under the nonproductive-time rule (20 CFR 655.731(c)(7)).
Does the lottery still apply?
Yes, unless the company is cap-exempt. A beneficiary-owned startup files a registration like any other employer and can file a cap petition only if selected. Our guides to the weighted H-1B lottery and cap-exempt H-1B employers cover both paths, including concurrent employment with a university or research nonprofit.
Is the O-1 the better founder route?
Often it is worth comparing. The O-1A avoids the lottery and has no annual cap, and evidence such as significant funding, a critical role and press can support it. But "An O–1 or O–2 petition may only be filed by a United States employer, a United States agent, or a foreign employer through a United States agent," and the beneficiary "may not petition for himself or herself" (8 CFR 214.2(o)(2)(i), eCFR). Our guide to O-1 through your own company or an agent explains the filing choice, and our guide to profile building for founders covers the evidence.
What about a green card later?
Plan it separately from the H-1B. A founder's own company sponsoring them through the labor certification route raises its own questions about whether the job is open to US workers. Many founders instead look at categories that do not need an employer. For the EB-1A, "neither an offer for employment in the United States nor a labor certification is required" (8 CFR 204.5(h)(5), 2025 edition), and the EB-2 national interest waiver removes the job offer requirement for those who qualify. Our guide to a green card without employer sponsorship compares the options.
What this means for you
- Check your ownership and voting structure, since over 50 percent triggers the beneficiary-owner rules.
- Write a job description where specialty occupation duties clearly take most of your time.
- Budget for your own salary at the required wage for at least the first 18 months.
- Keep corporate records, contracts and payroll ready for the first extension review.
- Make sure your workspace, actual duties and payroll match the petition in case USCIS conducts a site visit.
- Map out a green card route that does not depend on your own company's labor certification.
- Register for the lottery, or compare a cap-exempt or O-1 route if the lottery odds do not work.
Where to start
Our free evaluation at /evaluate/ compares your record against the O-1A, EB-1A and EB-2 NIW standards, which many founders use alongside or instead of the H-1B. Frank, our AI assistant at /frank, finds real opportunities to strengthen your profile. Petitions are reviewed and filed by our partner law firm, Lai & Turner.
Sources
All checked October 26, 2026.
- 8 CFR 214.2(h) and (o) (eCFR, current text). US employer definition; beneficiary-owner duties; 18-month validity; specialty occupation; who may file an O-1.
- 89 FR 103054, Modernizing H-1B Requirements (Dec. 18, 2024). Final rule effective January 17, 2025; DHS rationale for safeguards; site visits.
- 8 CFR 204.5(h)(5) (govinfo, 2025 edition). No job offer or labor certification for EB-1A.
- 20 CFR 655.731 (govinfo, 2025 edition). Required wage; cash wages paid; nonproductive time.
Frequently asked questions
Can I sponsor myself for an H-1B through my own startup?
Your startup can sponsor you, which is different from self-petitioning. Since January 17, 2025, the regulation recognizes a US employer in which the H-1B worker owns more than 50 percent or holds majority voting rights. The company files the petition, needs a bona fide job offer and a US legal presence, and must meet every other H-1B requirement, including the specialty occupation test and the lottery.
How much time can a founder spend running the company on H-1B?
Less than half. The regulation lets a controlling owner perform duties directly related to owning and directing the business, as long as the founder performs specialty occupation duties a majority of the time, consistent with the petition. A founder who mainly does fundraising, sales and administration would not fit; one who mainly builds the product or leads technical work can.
Why is a founder's H-1B approval only 18 months?
The regulation limits the initial approval for a beneficiary-owned company to a validity period of up to 18 months, and the first extension, including an amended petition with an extension, to up to 18 months as well. In the final rule, DHS said it is limiting the first two validity periods to 18 months each as a safeguard against possible abuse or fraud, so the company's operations get a second look early.
Do I have to pay myself a salary as a founder on H-1B?
Yes. The Labor Department rules require the employer to pay the required wage, the greater of the actual wage and the prevailing wage, for the whole period of employment, through payroll with tax withholding. Equity alone does not satisfy the wage obligation. Founders should plan cash runway for their own salary before filing.
Is the O-1 a better option for founders than the H-1B?
Often, if the record supports it. The O-1A has no lottery and no annual cap, and founders with funding, press, awards or a critical role can qualify. But O-1 beneficiaries may not petition for themselves, so a founder's own company or an agent must file. The H-1B route is more mechanical but depends on lottery selection unless the employer is cap-exempt.
Green Card Guide AI is not a law firm and this article is not legal advice. It describes evidence-building strategy in general terms; your attorney determines what belongs in your petition and how it's argued.
