The H-1B visa requires that there is an employee-employer relationship which makes it seem as though someone who founded a company cannot have that distinction based on that type of a relationship.
However, recent changes to the U.S. immigration laws have made it possible for a co-founder of a startup to be eligible for an H-1B visa if their employment is solely up to the company. Therefore, the easiest way to do this is by establishing a board of directors that is immediately above the H-1B employee within the company’s organization chart.
Because the board of directors can directly control or influence the employment of the co-founder, then he or she may be eligible for an H-1B visa if they meet the other criteria. Directly control or influence means that the board can hire, fire, supervise, pay, and more. Just so that you are aware, a few of the other requirements for obtaining an H-1B visa include proving that the company is a legitimate company. This is rather simple to do and is done by providing the proper documentation such as leases contracts, etc. You’ll also have to meet a requirement set forth by the Department of Labor.
This process can be complex and the knowledge and insight offered by an attorney is invaluable. I work at a startup with a mission to make lawyers more affordable, accessible, and transparent. We can connect you with an experienced immigration / business lawyer on-demand at. Hope you find this answer useful!