USCIS UPDATES H-1B FAQS FOR COMPANY OWNERS

DHS Secretary Napolitano and USCIS Director Mayorkas have announced a series of policy, operational, and outreach efforts, which are aimed at fueling the nation's economy and stimulating investment. They have sent some FAQ's on EB-2 for people with advanced degrees or exceptional ability (and explained the criteria for National Interest Waiver).
More importantly, they have updated the FAQ's regarding the H-1B visa's Neufeld memorandum from January 2010 as it relates to employee/employer relationship. While they have not changed this memo, the new FAQ's are more lenient than the memo, stating, in part, that an owner of a company may still qualify for H-1B status as long as he or she shows that someone else has the right to control them (such as a board of directors or shareholders). The exact Q&A reads as follows:

Q: The memorandum provides an example of when a beneficiary, who is the sole owner of the petitioner, would not establish a valid employer-employee relationship. Are there any examples of when a beneficiary, who is the sole owner of the petitioner, may be able to establish a valid employer-employee relationship?

A. Yes. In footnotes 9 and 10 of the memorandum, USCIS indicates that while a corporation may be a separate legal entity from its stockholders or sole owner, it may be difficult for that corporation to establish the requisite employer-employee relationship for purposes of an H-1B petition. However, if the facts show that there is a right to control by the petitioner over the employment of the beneficiary, then a valid employer-employee relationship may be established. For example, if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary, the petitioner may be able to establish an employer-employee relationship with the beneficiary.

You can read the FAQ's at:
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3d015869c9326210VgnVCM100000082ca60aRCRD&vgnextchannel=6abe6d26d17df110VgnVCM1000004718190aRCRD