Status · H-1B
The entrepreneur rule, and what replaced the independent-board path
Owning the company is allowed. What the rule asks is whether the job offer is bona fide, and how long each approval lasts when you own more than half of the company. Here is the independent-board advice that used to circulate, the January 2025 beneficiary-owner rule that replaced it, and where the pending H-1B rules stand.
published 28 July 2026 · checked 3 October 2026
Revised 2 October 2026. The first version of this page presented a three-year independent-board route as a live option for a majority owner. The January 2025 rule closed that route. This version corrects it. Revised again 3 October 2026. The summary of pending rules below now carries the proposed end of the 60-day grace period and a second court's order on the $100,000 restriction. The old advice stays on the page, labelled as superseded, so you can recognise it when a forum repeats it.
The gap, named · our reading of the rule
Entrepreneurs historically believed that owning majority stock in a startup automatically blocked H-1B sponsorship. Before 17 January 2025 the usual advice was to build an independent board with authority to hire, supervise and fire you, so the file could show an employer-employee relationship. Since 17 January 2025 the rule is different. DHS's final rule, 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. 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 whatever the board looks like. A beneficiary-owner's first approval and first extension are each capped at 18 months.
The Regulatory Framework
The rule opened direct self-sponsorship by an owner's own company, on its own terms. The two columns below show what the independent-board advice said and what the rule says now.
| Regulatory feature | Before 17 January 2025 (superseded for owners with a controlling interest) | Since 17 January 2025: 89 FR 103054 (FINAL) |
|---|---|---|
| What the file has to show | An employer-employee relationship, usually through an independent board able to hire, supervise and fire the owner | A bona fide job offer. The employer-employee relationship requirement was replaced |
| Who is treated as an owner | The advice turned on whether an independent board existed | Anyone with a controlling interest: more than 50% ownership, or majority voting rights |
| Does a board change the answer for a majority owner | The old advice said yes | No. A majority owner is a beneficiary-owner whatever the board looks like |
| Validity | The first version of this page quoted up to 3 years on initial approval | Initial approval is capped at 18 months. The first extension is capped at 18 months |
| Duty mix | Work must match specialty occupation duties | A majority of your time (more than 50%) in the specialty occupation. Entrepreneur tasks are allowed in the remainder |
| Salary | Must pay the DOL prevailing wage | Must pay the DOL prevailing wage. No zero or deferred salary |
Whether a structure with 50% or less of the equity and no majority vote falls outside the beneficiary-owner definition, and so outside the 18-month limits, is a question for your own attorney. It turns on your cap table and your voting terms. This page does not answer it.
Five pending rules that reach an owner's H-1B
These are summarised here and set out in full in the status block below.
- $100,000 restriction: the implementing guidance was VACATED on 8 June 2026 and the restriction was EXTENDED by Proclamation 11069 on 18 September 2026. It is not being collected today. A second court is reported to have blocked enforcement again on 30 September 2026 (OBSERVATION: we have not read that order).
- $103,265 fee on cap-subject petitions: PROPOSED, 25 August 2026. Not law.
- Wage-weighted selection: FINAL, effective 27 February 2026. A Level I wage gets one lottery entry and a Level IV wage gets four.
- Department of Labor prevailing-wage overhaul: PROPOSED, 27 March 2026. Not final.
- 60-day grace period: PROPOSED, 11 September 2026. It would remove the grace period of up to 60 days after an H-1B job ends. Comments close 10 November 2026. Not law.
Status of pending rules · checked 2 and 3 October 2026
Rules in these lanes are moving in weeks, not years. Each line below names the instrument, its stage and its date. The stage words mean: FINAL (published, and in force unless a court has stopped it), PROPOSED (published for comment, not law), EXTENDED (renewed by a new proclamation), ENJOINED or BLOCKED (a court has paused it or stopped its enforcement), POSTPONED (a court has delayed the date a rule takes effect), VACATED (a court has set it aside), NOT PUBLISHED (reported, with no text to read). Two of these, the student admission rule and the $100,000 fee, can change again on appeal within weeks. Rows 1, 2, 4, 5 and 13 were re-read on 3 October 2026, and the other rows on 2 October 2026. This is education about where each rule stands. Whether any of it reaches your situation is a question for your own attorney.
| # | Rule | Stage and date | What it does | How sure we are |
|---|---|---|---|---|
| 1 | $103,265 fee on cap-subject H-1B petitions | PROPOSED. Notice of proposed rulemaking, 25 August 2026. Comments closed 24 September 2026. | Would add a fee of $103,265 to cap-subject H-1B petitions. The proposal has no small-employer exemption. It excludes higher-education and nonprofit research petitioners. It is not law. FR Doc 2026-17324 | FACT |
| 2 | $100,000 H-1B restriction | VACATED (implementing guidance), 8 June 2026, State of California v. Mullin (D. Mass.). The First Circuit denied a stay on 24 July 2026, and the appeal is pending (No. 26-1699). EXTENDED by Proclamation 11069, signed 18 September 2026, effective 21 September 2026, to 21 September 2027. BLOCKED again, as reported: on 30 September 2026 a second court (N.D. Cal., Global Nurse Force v. Trump) is reported to have blocked enforcement under both proclamations. | USCIS says it will comply with the vacatur, so the $100,000 is not being collected today. The original restriction was Proclamation 10973 of 19 September 2025. USCIS H-1B FAQ (read 3 October 2026) · FR Doc 2026-19554 · plaintiffs' counsel announcement of the 30 September order | FACT that it is not being collected today. OBSERVATION on the 30 September order: our sources are the plaintiffs' counsel and one analytics summary, we have not read the order, and its scope is UNKNOWN. |
| 3 | H-1B program-integrity executive order | FINAL (executive order), 18 September 2026. | Directs State, Labor and DHS to weigh an employer's recent or planned layoffs of similarly situated U.S. workers when petitions are reviewed. Implementing guidance has not been published as far as we can find. White House fact sheet | FACT on the order. UNKNOWN on guidance. |
| 4 | F-1 duration of status: fixed admission period | FINAL rule published 17 July 2026 (91 FR 45124), effective date 15 September 2026. POSTPONED by court order. On 14 September 2026 the federal court in Massachusetts postponed the rule's effective date nationwide (5 U.S.C. § 705, Presidents' Alliance on Higher Education and Immigration v. DHS). The government appealed on 1 October 2026 (First Circuit No. 26-2112). Duration of status continues for now. | If the rule takes effect: admission is fixed to the I-20 program with a maximum of 4 years. The departure grace period falls from 60 to 30 days. OPT and STEM OPT require a USCIS extension of stay. The eCFR shows the new text as if it were in force. It does not reflect the court order. FR Doc 2026-14439 · Study in the States · Memorandum and Order, 14 September 2026 | FACT. We read the order itself on 3 October 2026. No DHS or Study in the States page we read yet mentions it, so a school page may still show the rule as coming. |
| 5 | OPT fee rule | NOT PUBLISHED. Sent to the Office of Management and Budget for review on 20 August 2026. | Press reports describe a large OPT filing fee. Until a proposed rule appears, those reports are a hypothesis. Current I-765 fees are unchanged. | OBSERVATION (university international office). Press figures are HYPOTHESIS. We found no proposed rule in the Federal Register as of 3 October 2026. |
| 6 | H-4 EAD rescission | On the federal Unified Agenda as a long-term action, RIN 1615-AD14. No proposed rule. No date. | Would remove H-4 spouses from the classes eligible for work authorization. It is not law. | OBSERVATION (law-firm reporting) |
| 7 | Wage-weighted H-1B selection | FINAL. Published 29 December 2025, effective 27 February 2026. Used for the FY2027 registration, 4 to 19 March 2026. | A Level IV wage level gets four entries in the selection lottery and Level I gets one. A company that registers its owner at a Level I wage gets one entry. FR Doc 2025-23853 | FACT. No business challenge was filed before FY2027 selection (OBSERVATION). |
| 8 | Department of Labor prevailing-wage overhaul | PROPOSED. 27 March 2026. | Would raise Level I from the 17th to the 34th percentile and Level IV from the 67th to the 88th. It is not final. FR Doc 2026-06017 | FACT |
| 9 | End of automatic EAD extensions | FINAL (interim final rule), in force since 30 October 2025. 90 FR 48799. | For renewals filed on or after 30 October 2025, an expiring work-authorization card is no longer extended automatically, H-4 included. Extensions already granted on renewals filed before that date are unaffected. FR Doc 2025-19702 | FACT |
| 10 | Online-presence review for H-1B and H-4 visa applicants | State Department policy since 15 December 2025. It applied to F, M and J applicants from June 2025. | Applicants are expected to make social media settings public. | OBSERVATION (secondary reporting). We did not re-read the State Department announcement on 2 or 3 October 2026. |
| 11 | Cap-gap extended to 1 April | FINAL. Part of the January 2025 modernization rule, 89 FR 103054, in force since 17 January 2025. | F-1 students moving to H-1B are covered until 1 April, which is later than the old 1 October date. FR Doc 2024-29354 | FACT |
| 12 | $250 visa integrity fee | Enacted 4 July 2025 (Public Law 119-21). Not yet collected. | A fee created by statute. The date it starts being collected is UNKNOWN. | FACT on enactment. UNKNOWN on start date. |
| 13 | 60-day grace period for workers | PROPOSED. Published 11 September 2026 (91 FR 57807). Comments close 10 November 2026. | Would remove 8 CFR 214.1(l)(2), the grace period of up to 60 days after a job ends, for H-1B, E-3, L-1, O-1 and TN workers and others, and for their dependents. It is not law. FR Doc 2026-18631 | FACT |
If a date here is older than the news, the news wins. Check the linked source, then take the question to your attorney.
How entrepreneurs prepare for this conversation
If your company will hold your controlling interest (a beneficiary-owner petition):
- Step 1: Structure the Time-Allocation Matrix. Itemize your job duties to show that specialty occupation tasks (for example software engineering or algorithm design) take more than 50% of your working hours.
- Step 2: Document the Permissible Entrepreneur Duties. Allocate the remaining hours (under 50%) to direct business-building tasks such as signing leases, negotiating vendor contracts and fundraising.
- Step 3: Verify Active Commercial Operations. Gather proof of a bona fide job offer from an active U.S. entity with an EIN and legal presence.
- Step 4: Put both 18-month periods on one calendar. Date the first approval and the first extension, and take to your attorney the question of what the rule requires after the first extension.
If independent directors are part of your company anyway:
- A board with independent members, real minutes and an arm's-length employment agreement is still ordinary governance evidence. It speaks to whether the job offer is bona fide and whether the company can pay the wage. For a person holding more than 50% or a majority vote it does not change the beneficiary-owner limits.
If your structure sits at or below the line:
- Whether 50% or less of the equity with no majority vote avoids the beneficiary-owner limits is your attorney's question. Bring the cap table, the voting terms and the next financing plan.
Attorney Interrogation Sheet (What to Ask)
- Under 89 FR 103054, am I a beneficiary-owner on today's cap table and voting terms? What changes if equity or votes shift at a financing?
- If I hold 50% or less and no majority vote, does the structure stay outside the definition?
- Does my itemised task allocation satisfy the requirement that specialty duties take the majority (more than 50%) of my time?
- How do the two 18-month periods affect my extension and green-card timing?
- How do wage-weighted selection (FINAL) and the proposed $103,265 fee affect a cap-subject filing by my company?
- If my H-1B employment ended today, what would the 60-day grace period give me, and what would change if the proposal to remove it became final?
What this is not This piece quotes the published rule and says plainly where we are reading it rather than quoting it. It is not legal, tax or immigration advice, it creates no attorney–client relationship, and neither you nor we can apply it to your facts. Rules also move — check the date above, then take the questions in this piece to your own licensed attorney and CPA, who are the only people who can advise you.
Sources · primary law first, our own notes labelled as such
89 FR 103054 (FR Doc 2024-29354), published 18 December 2024, effective 17 January 2025: DHS final rule on beneficiary-owned petitioners. Read 2 October 2026.
USCIS stakeholder message on the final rule, December 2024. Read 2 October 2026.
8 CFR 214.2(h)(4)(ii): definition of "United States employer." Check the text in force on the day you read it.
USCIS Policy Manual, Volume 7: beneficiary-owned petitioners. Last read August 2026 and not re-read on 2 October 2026.
Pending-rule sources: linked in the status block above.
Ownership and work authorisation are treated differently in the rules, and that difference is what this library is about. Everything here is written for people keeping the job that holds their status.
Put a number on it. The Fork
Then choose your route. The Immigrant Entrepreneur Cohort is four weeks, while employed, and it starts with exactly this question. See the next run →