H-1B founders: starting your own company on an H-1B

Many H-1B professionals assume they can only ever work for someone else, and that a layoff means leaving the United States within 60 days. That is not the whole picture. Your own company can sponsor your H-1B, and a part-time concurrent H-1B with your own startup can act as a backup if you lose your main job.

In short: form a real company, give it a real specialty-occupation job for you, pay at least the required wage for the hours you work, and have a licensed attorney file the petition. Done properly, you gain a business of your own and more control over your status.

Immigration rules change often. This guide is general information, not legal advice. Every case is different, so confirm each point with a licensed immigration attorney before you act.

Can an H-1B holder start a company?

Owning a company and working for it are different things.

Owning shares and doing limited passive activities, such as investing, is generally fine on an H-1B.
Working for your company, for example building the product, selling or managing, needs work authorization for that employer. On an H-1B, that means the company must file its own H-1B petition for you.

Until that petition is approved, keep your role passive and check with an attorney about what you can and cannot do.

The founder-owned H-1B (beneficiary-owners)

The H-1B modernization rule that took effect on January 17, 2025 made it clear that a person who owns a controlling interest in the petitioning company, called a beneficiary-owner, can be sponsored by that company. Key points:

A real employer and a bona fide job. The company must be a genuine business with an actual specialty-occupation role for you, such as software engineer, data scientist, or a similar professional role in your field.
Mostly specialty work. You can also do some founder duties, like sales or management, but most of your time in the petitioned role should be spent on the specialty-occupation duties.
Shorter approvals at first. When you hold a controlling interest, the first approval and the first extension are each limited to 18 months.
Ability to pay. The company has to show it can pay the required wage.

The concurrent H-1B backup plan

If you are already on an H-1B with an employer, your own company can file a concurrent H-1B for you while you keep your main job.

Keep your main job. Your primary H-1B continues as normal.
Your company files a concurrent petition, often for a part-time role. You have already been counted against the cap, so there is no lottery.
Work for both once it is approved, within the hours and duties in each petition.
If the main job ends, the concurrent H-1B can keep you in status while you keep working for your company under its terms. If needed, your attorney can then help you change it to full-time with an amended or new petition.

This turns a 60-day emergency into a plan you set up in advance.

Wages, hours and compliance

This is where founder H-1Bs go wrong, so plan for it from day one.

Required wage. The company must pay at least the higher of the actual wage and the prevailing wage for the role and location. For part-time roles, this applies to the hours in the petition.
Real payroll. The company pays you through payroll, with withholding, not through occasional transfers.
Labor Condition Application (LCA). Before filing, the company files an LCA with the Department of Labor, posts the required notice and keeps a public access file.
No benching. If the company has no work for you, it generally still has to pay you the wage in the petition.
Changes need filings. Changing hours, duties or the work location in a material way can require an amended petition.
Other rules. Fees and policies for new H-1B petitions changed in 2025, including a payment that applies to some new petitions, mostly for people outside the United States. Ask your attorney which rules apply to you.

What makes the company real

USCIS looks for a genuine business, not a shell set up only for a visa. Strong founder cases usually show:

A registered company with a bank account, an EIN and payroll
A clear business plan: the customer, the problem, the product and how it makes money
Funding or revenue to cover your wages, such as savings invested, customers, grants or investors
A real specialty-occupation role and a record of work, such as products, contracts, customers or partners
Where needed, a board or other structure that can supervise your employment

From H-1B founder to green card

A startup that grows creates the kind of evidence used for longer-term options:

O-1A, for founders with extraordinary ability, with no lottery and no six-year limit
EB-1A, the extraordinary ability green card, which you can file for yourself
EB-2 NIW, where your company can be the proposed endeavor in the national interest

See our guides to the O-1, EB-1A and EB-2 NIW.

How BuildCaliber helps

We coach the business side, and independent partner attorneys handle everything legal. Read about our H-1B founder coaching and startup coaching.

Frequently asked questions

Can I start my own company while on an H-1B?

You can usually own shares in a company and do some passive activities, but you cannot work for it until it has its own approved H-1B petition (or another work authorization) for you. Under the H-1B rule that took effect in January 2025, a company you control can file that petition, as long as it is a real business with a bona fide job for you.

What is a concurrent H-1B?

A second H-1B petition, filed by a different employer, that lets you work for both employers at the same time. If you already hold an H-1B, a concurrent petition is not subject to the annual lottery. It can be part-time, and your own startup can be the second employer.

How does a startup H-1B help if I am laid off?

When H-1B employment ends, you generally have a grace period of up to 60 days to find a new sponsor, change status or leave. If your own company already has an approved concurrent H-1B for you, that petition can keep you in status after the main job ends, as long as you keep working for your company under its terms. Your company can also file during the grace period, although that is more rushed.

Can my company pay me a low salary for a few hours a week?

Part-time H-1B employment is allowed, but your company must pay at least the required wage, which is the higher of the actual wage and the prevailing wage for your role and location, for the hours stated in the petition. It must run real payroll, and it generally cannot stop paying you because there is no work. An attorney will set hours and wages that are compliant and that the company can afford.

Is there a limit for founder-owned H-1B petitions?

Yes. If you own a controlling interest in the petitioning company, the first approval and the first extension are each limited to 18 months. Later extensions follow the usual rules, and the overall six-year H-1B limit still applies.

Do I need to win the H-1B lottery to do this?

Not if you have already been counted against the H-1B cap, for example because you currently hold a cap-subject H-1B. If you have never held an H-1B, for example if you are on F-1 OPT, your company would normally need to register you in the annual lottery.

Does BuildCaliber file H-1B petitions?

No. BuildCaliber is a coaching service. We help you build a real, viable company and prepare for the process. Independent, licensed immigration attorneys advise on eligibility and prepare and file every petition.

Disclaimer: BuildCaliber is a coaching service. We are not attorneys and do not provide legal, tax or investment advice. This page is general information, and immigration rules change. We do not guarantee any result. Talk to a licensed immigration attorney about your own situation before you start working for your company.

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