No, You Do Not Need a Board of Directors to Self-Petition Your Own H-1B
I’ve been telling people this for a while now: if you own your own company and want to sponsor yourself for an H-1B through it, you do not need a board of directors. No investors. No outside corporate governance. None of it.
I’ve said it enough times that people started asking me if I was sure. Then USCIS issued an RFE questioning exactly that, on one of my own cases. So let’s settle it.
What USCIS Said
Earlier this month I got a Request for Evidence on an H-1B self-petition for a client who owns 100 percent of a newly formed, single-member LLC. USCIS didn’t take issue with the job, the wage, or the specialty occupation. Instead, it flagged the business plan because it “does not demonstrate your company currently contains a board of directors, investors, or a corporate governance that would hold the ability to hire, fire or direct your work.”
In other words: USCIS wanted a single-member LLC to produce a board of directors it has no legal reason to have.
Why That’s Wrong
Effective January 17, 2025, DHS rewrote the definition of “United States employer” at 8 CFR § 214.2(h)(4)(ii) as part of the H-1B Modernization Rule. The new subsection (4) covers exactly this situation: if the beneficiary owns more than 50 percent of the petitioner, or has majority voting rights, that beneficiary can perform duties related to owning and directing the business, as long as they’re also performing specialty occupation duties a majority of the time.
That’s the whole test. Majority ownership or voting control, plus specialty duties a majority of the time. Nothing in that regulation, or anywhere else in 8 CFR § 214.2(h)(4)(ii), says a word about a board of directors, outside investors, or a separate governance body with authority to hire or fire the owner.
It couldn’t say that, or the rule would contradict itself. The whole point of the Modernization Rule was to let entrepreneurs and majority owners, including sole owners, sponsor themselves. That category of petitioner will, almost by definition, have no board and no outside investors. Demanding the governance structure the rule was written to get around would make the exception impossible for anyone to actually use.
USCIS was still running the old, pre-2025 playbook, asking whether the company could independently hire, pay, fire, or supervise the beneficiary, as if that beneficiary were just another employee. That test doesn’t control anymore for a controlling-interest owner. Subsection (4) replaced it for this exact fact pattern. And even under the old test, courts have already told USCIS it can’t create additional requirements beyond what the regulations state. See ITServe Alliance, Inc. v. Cissna, 443 F. Supp. 3d 14 (D.D.C. 2020).
What I Told Them
I laid it out for USCIS plainly: the regulation doesn’t require a board, the rule was written specifically so sole owners like this one wouldn’t need one, and demanding one anyway imports a requirement that has no basis in the text. I backed up the actual employer-employee relationship with what actually matters: the operating agreement naming my client as sole Member and Managing Member with full legal authority over his own position, the certified LCA, and a job description showing roughly 80 percent of his time on specialty occupation work tied directly to his LCA’s occupational classification. He will also be paid through the LLC’s own payroll, running it and paying himself W-2 wages, which is exactly the kind of formality that proves a real employer-employee relationship exists.
The petition got approved, as I thought it would. (phew!)
The Takeaway
If you’re building a self-petition, or dealing with an RFE that’s questioning your governance structure, don’t let it talk you into inventing a board you don’t need. As of the H-1B Modernization Rule, the standard is majority ownership or voting control, plus specialty occupation duties a majority of your time. That’s it. Spend your energy making sure your operating agreement, job description, and business plan cover those two things.
If you’re considering self-sponsoring your own H-1B, or you’ve already got an RFE in hand, my firm handles these from formation through filing and RFE response. Feel free to reach out directly at cprescott@psbplaw.com.
This is a real case handled by our office; identifying details have been withheld.