On December 18, 2024, the U.S. Department of Homeland Security (DHS) published a final rule modernizing the H-1B visa program, effective January 17, 2025 for entrepreneurs.

This new final rule allows H-1B beneficiaries with a controlling interest in a petitioning organization to be eligible (subject to certain conditions). Specifically, the rule permits such beneficiary-owners to self-petition. (Provided they can establish a legitimate employer-employee relationship, demonstrating that the company has the right to control their employment.) This includes the ability to hire, fire, pay, and supervise the beneficiary’s work. To ensure compliance, the rule may impose shortened validity periods, such as 18 months for the initial H-1B petition and subsequent extensions.

Understanding the Entrepreneur Visa USA Requirements.

What are these conditions? Under the 2025 final rule, a beneficiary-owner can self-petition for an H-1B visa if they meet the following conditions:

Employer-Employee Relationship: The petitioner must demonstrate a legitimate employer-employee relationship. This indicates the company’s right to control the beneficiary’s employment, including hiring, firing, payment, and supervision. In other words, I think here the petitioner would have to show that the beneficiary-owner is not the sole decision-maker for hiring and firing and employment control. For example, if he or she is one of the partners, or if there is a board of directors above him/her, that would solidify the filer’s status.
Bona Fide Position: Securing a visa as an entrepreneur in the USA requires meeting specific criteria. The petitioner must establish that a bona fide position in a specialty occupation is available for the beneficiary as of the requested start date. The filer would have to prove this is a real job in the company, not just a fake vacancy only created on paper to give him/her a visa.
Compliance with Program Integrity Measures: The petitioner must adhere to all program integrity measures, including providing accurate information in the petition and complying with any site visits or requests for evidence by USCIS. There will be a higher chance of a site visit if the beneficiary is also one of the company owners.

These conditions aim to ensure that the H-1B program maintains its integrity while providing flexibility for entrepreneurs and startup founders. The updated regulations provide new opportunities for business owners to secure a visa while growing their ventures in the USA.

In addition to the above, in the final rule, DHS is:

(1) revising the regulatory definition and criteria for “specialty occupation”;

(2) clarifying that “normally” does not mean “always” within the criteria; and

(3) clarifying the required field(s) must be directly related to the proffered position’s job duties.

Longer Cap-Gap for students changing status from F1 to H1B:

The Rule extends flexibility for students on an F-1 visa seeking to change their status to H-1B to avoid disruptions in lawful status and employment authorization.

The final rule extends the cap-gap protection period from October 1 to as late as April 1 of the following fiscal year) for F-1 students changing status to H-1B.

Deference to Prior USCIS Adjudications:

The Rule clarifies that when adjudicating an extension petition involving the same parties and same underlying facts, adjudicators generally should defer to a prior determination on the beneficiary’s eligibility, unless there is a material error.

Codifying USCIS’ Authority to Conduct Site Visits

The Rule strengthens program integrity by codifying USCIS’ authority to conduct site visits and impose penalties for compliance failures. While providing more flexibility and leniency, the final rule also adds a higher level of scrutiny and the possibility of more frequent site visits and audits by DHS to reduce fraud in the H-1B process.

This Final Rule will go into effect on January 17, 2025. These changes aim to provide greater flexibility for entrepreneurs and startup founders seeking to utilize the H-1B program to secure a visa.

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