Status · H-1B
The control question, and how it changed for H-1B owner petitions
Until 17 January 2025 the hardest question in an H-1B owner petition was who controls the employment relationship. The final rule replaced that test with a bona fide job offer requirement and a set of limits on beneficiary-owners. Here is what changed, and what governance records still do for a file.
prepared 27 August 2026 · revised 2 October 2026 · checked 2 October 2026 · publication gated on source-check against primary authority and Serotte review
Review status, 2 October 2026. The rule statements in this revision were source-checked against the Federal Register on 2 October 2026. The attorney review named above has not yet taken place on this revision.
An employment relationship, as immigration law read it before 2025, had two distinct parties. One side offered the job, set its terms, supervised the work and could end it. The other side performed it. Most petitions never thought about this, because the two sides were obviously different people.
An owner petition collapsed that obviousness. When the person who would sign the offer letter was also the person accepting it, the question USCIS considered was whether an employment relationship existed at all, or whether one person was simply writing letters to themselves.
What changed on 17 January 2025
The final rule at 89 FR 103054 (published 18 December 2024, FINAL, effective 17 January 2025) replaced the employer-employee relationship requirement with a bona fide job offer requirement for H-1B. It also defines a controlling interest as owning more than 50% of the company or holding majority voting rights. A person with a controlling interest is a beneficiary-owner, and the first approval and the first extension for a beneficiary-owner are each capped at 18 months. A board does not change that for a majority owner.
So the test the page used to teach as the live question belongs to the earlier rule. The test in force for an H-1B owner is the bona fide job offer plus the beneficiary-owner conditions.
Where the control question still lives
In the evidence. The company's documents still speak to whether the job offer is bona fide and whether the company can pay the wage. Articles, bylaws, operating agreements, shareholder agreements and board resolutions are the paper a file is read against.
In other categories. For categories other than H-1B, the employment-relationship question can still be the frame. Which test your category uses is a question for your attorney.
Two properties separate records that carry weight from records that gesture at it.
It is real on paper. The documents actually grant the authority they claim to grant, to people who actually hold it, and the ownership ledger matches the story the petition tells. A narrative that contradicts the company's own records is worse than no narrative.
It is real in practice. Minutes exist. Decisions are made the way the documents say they are made. Compensation is set by whoever the documents say sets it. Among the things a file is read for is the difference between governance that operates and governance that was drafted the week before filing.
None of this means an owner can never be the beneficiary of their own company's petition. The rule describes exactly that case, with its 18-month limits, and it asks that the job offer be bona fide. The file has to demonstrate that rather than assert it, and the demonstration is built months before it is needed, in the company's actual paper and actual habits.
It also means the design of the company belongs in the same conversation as the petition. Who holds shares and votes decides whether you are a beneficiary-owner at all. That is a decision with immigration consequences, which is why it belongs with counsel who can see both halves.
What this article gives you is the shape of the inquiry as it stands on 2 October 2026, so that the documents in your company stop looking like formalities and start looking like what they are: evidence.
Questions to bring to your attorney
- Am I a beneficiary-owner under 89 FR 103054 on today's equity and voting terms?
- If I hold 50% or less with no majority vote, does the structure stay outside the definition?
- Which of our governance records would be read as evidence of a bona fide job offer and of ability to pay?
- If I am applying under a category other than H-1B, which test does that category use?
What this is not This is education, not legal advice. What is true for one person turns on their facts; yours will be different. Take them to someone qualified.
Sources
89 FR 103054 (FR Doc 2024-29354), effective 17 January 2025. Read 2 October 2026.
USCIS stakeholder message on the final rule, December 2024. Read 2 October 2026.