3 H-1B Myths You Need to Unlearn

By Amber Davis, Principal Attorney at Waypoint Immigration USA, and Kate Luther

Established in 1990, the H-1B nonimmigrant classification has become a staple of the U.S. immigration system, and for good reason. 

This is a dual-intent pathway, meaning you can seek permanent residency while working under the H-1B without risking your temporary visa for having immigrant intent. You also have a substantial six-year window (including extensions) to do it. 

Your spouse and any unmarried children under 21 can migrate with you under an H-4 visa, and your authorization is “portable,” allowing you to change jobs once the new company files the paperwork without having to wait for approval. (Note: switching from a cap-exempt company to a non-exempt company does not afford this portability.)

Historically, the H-1B program operated under a strict “employer-employee” relationship paradigm, where the employee could not control their employment because the employer was required to maintain clear control over the work. This made it difficult for founders and sole owners to self-sponsor. 

But in 2025, that changed. 

With the Modernization Rule, DHS updated H-1B guidelines, giving entrepreneurs some much-needed new freedom. Interestingly though, we still see a lot of people operating under the old rules, working with an outdated strategy. 

So, let’s put that old strategy to rest. Here are three key changes you can now exploit with an H-1B:

1. Your Startup Company Can Sponsor Your H-1B Visa

First and foremost, a company you own and operate can sponsor your H-1B. It must be a separate legal entity (no sole proprietorships), but you can be both a founder and an employee. 

You can even work on your business part-time under its sponsoring H-1B, while working under a different H-1B for a traditional employer. This is called Concurrent H-1B employment.

2. H1Bs Aren’t Just For Tech Professionals 

While it’s true the H-1B was designed for "specialty occupations," that can include a broad range of industries and specialties beyond tech.

We’ve seen successful H-1B petitions for researchers and engineers for example, as well as professors, doctors and pharmacists, architects, economists, lawyers, and financial analysts. 

The key to “specialty occupations” is that the job “requires highly specialized knowledge” associated with “a bachelor’s or higher degree in the specific specialty.”

3. You Do Not Have to Give Up Controlling Interest

In order to satisfy the old “ employer-employee” relationship, founders and entrepreneurs often had to create complicated organizational structures to ensure they weren’t breaking any rules. This often included giving up controlling interest of the company, or giving final oversight to an American-based Board of Directors. Formal relinquishment of control to a board is no longer required.

The new 2025 rule clarified that you can own (and work in) your company outright.

There are still some rules you have to follow, of course: your business must be a separate legal entity for example (as mentioned above) and if you’re working on this business part-time, you’ll need to make sure you’re not violating any anti-moonlighting policies with your primary employer. 

You also must be able to pay yourself a “prevailing wage” from the outset, meaning you’ll need to make something similar to others working in your industry specialty. You can’t be compensated like many other founders. You have to earn the prevailing wage.

What About the Lottery?

That depends. Is your company cap-exempt? If so, there’s no annual cap limit to require a lottery slot. If you are self-sponsoring and your company would normally be subject to the cap (i.e., not exempt), then yes, you would have to go through the lottery. 

Are you already working under an H-1B that counted against the cap? If the answer is yes, you do not have to go through the lottery again. You would just transition to your new company the same way you would transition to a new traditional employer. Or you can pursue concurrent employment.

If you can meet the requirements, this new beneficiary-owner pathway offers considerable flexibility. It’s also a smart move for individuals interested in building something of their own. 

Want to talk about your H-1B options? Contact our office today!