Pre-Incorporation Training: Form Your Own H-1B Cap Exempt Employer In 1 Day

DHS seeks to encourage more nonimmigrant entrepreneurs possessing highly specialized knowledge from the attainment of a US degree or its equivalent to participate in the H-1B program as beneficiaries of a Form I-129 Petition for a Nonimmigrant Worker submitted by their own United States employer. Participants will learn the basics to incorporate in one day.

H-1B CEO™ Pre-Incorporation Training Day Topics

A. "Founder" is an imprecise term and is not defined by Delaware General Corporation Law or California Corporations Code.

Create a "Name Tent," with the following titles, "Sole Incorporator, Initial/Sole Director, Chair of the Board, CEO, CFO, and Secretary"

Authorized Signers for Corporations: Under the Immigration and Nationality Act (INA), corporations may file certain requests with USCIS. Such a filing may include a request to classify an alien as a nonimmigrant under a specific employment-based category, H-1B cap exempt for example.

Benefit requests filed with USCIS by such legal entities may only be signed by a person with the authority to sign on behalf of the petitioning entity. Authorized persons may include, but are not limited to:

(1) An executive officer of a corporation with authority to act on behalf of the corporate entity and legally bind and commit the corporate entity in all matters (for example, chief executive officer or president).

Discuss for profit corporate officers versus nonprofit corporate officers.

(2) OPTIONAL: An attorney employed in an employer-employee relationship by a corporation or other legal entity as its legal representative, or as a legal representative by the corporation or other legal entity’s legal department in an employer-employee relationship (for example, in-house counsel, or other attorney employees or contractors).

B. Precedents: A petitioning corporation is a separate and distinct legal entity from its owners or stockholders.

Matter of M—, 8 I&N Dec. 24, 50 (BIA 1958, AG 1958): A foreign national who is the sole owner of a bona fide corporation may qualify as a beneficiary of a first preference petition filed by the same corporation.

Matter of Allan Gee, Inc., 17 I&N Dec. 296 (Reg’l Comm’r 1979): When a petitioner corporation has been duly incorporated under the laws of a State, it is a separate legal entity existing independently of its stockholder. Therefore, that sole stockholder may be the beneficiary of a petition filed by the corporation. Under these circumstances, the beneficiary will not be regarded as his own petitioner/employer.

Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm’r 1980): A corporation is a separate entity from its stockholders.

Matter of Tessel, 17 I&N Dec. 31 (Act. Assoc. Comm’r 1980): The corporation is a separate legal entity from its stockholders, able to employ them and to file a petition on their behalf.

As such, a corporation, even if it is owned and operated by a single person, may hire that person, and the parties will be in an employer-employee relationship. The beneficiary's relationship to the petitioner is not a proper basis for denying the petition.

C. Final Rule 81 FR 82398, effective since January 17, 2017;

D. Final Rule 89 FR 103054, effective since January 17, 2025;

E. DHS Policy Memorandum, PM-602-0114, effective since June 17, 2020;

F. 8 CFR 214.2(h)(4)(iii) “United States employer” [California Nonprofit Public Benefit Corporation vs Delaware Charitable Nonstock Corporation];

G. IRS Rev. Rul. 66-219, 1966-2 C.B. 208;

H. Epitome Case Study: Y COMBINATOR RESEARCH, INC. renamed to OPEN RESEARCH LAB, INC. (Precursor to OPENAI, INC.);

I. 8 CFR 103.2(a)(3), "A [United States employer] petitioner MAY BE represented by an attorney in the USA [NOT REQUIRED]";

J. 20 CFR 655.700(b), "Procedure for obtaining an H-1B [cap exempt] classification;

K. 8 CFR 103.2(a)(1), "Preparation and submission" [of USDOL Form ETA-9035 and USCIS Form I-129 must be executed in accordance with the form instructions];

L. ETA-9035CP, "General Instructions [For The Labor Condition Application]";

M. Instructions to USCIS Form I-129;

N. Can a FOR PROFIT corporation that would not otherwise be a qualifying institution claim eligibility to file USCIS Form I-129 with a certified USDOL Form ETA-9035 Labor Condition Application (LCA) for H-1B cap exempt status on behalf of a direct employee?