One of the many reasons why immigrants wish to come to the United States is for the purpose of working, which is why there is an entire category of employment-based visas. And if you plan on applying for an H-1B visa as an entrepreneur, you may wonder if this will allow you to start a business. It’s important that you understand what is and isn’t allowed with the type of visa you apply for to avoid running into immigration issues later on. Keep reading to find out if entrepreneurs should apply for an H-1B visa and whether this allows you to start your own business in the U.S.
What is an H-1B Visa?
Before we discuss the immigration options for entrepreneurs, you should understand what an H-1B visa actually is. An H-1B visa is a temporary and employer-sponsored work visa that allows you, as a foreign worker, to come to the U.S. to work.
The job position must require highly specialized knowledge and a bachelor’s degree or its equivalent. It also allows workers to remain in the U.S. for three years, with additional extensions. Many H-1B visa holders use this as an opportunity to start the process of applying for a green card.
Can an H-1B Visa Holder Own a Business?
As you can see, the general purpose of an H-1B visa is to allow foreign workers to legally come to the U.S. to work for an eligible company, specifically if they have specialized knowledge or skills. It’s important to keep in mind that this visa is only valid when you are working for one specific company, which is why starting your own business on an H-1B visa can come with challenges.
The good news is that it is possible to own a business if you are in the U.S. with an H-1B visa. You just need to keep in mind that your activity with the company needs to remain passive, so you can’t do anything that would categorize you as being actively employed by the company.
Here are some examples of what you can and cannot do to legally maintain your H-1B visa as a startup founder:
- Allowed – Passive ownership: Form a legal business entity, hold equity in the business, perform high-level business tasks, participate in business meetings, conduct market research, and develop business relationships.
- Not Allowed – Active employment: Run daily business operations, perform executive duties, perform and manage hands-on labor, earn a salary, and write code for company products.
Understanding these distinctions can help you own a business while on an H-1B visa without violating any of the visa terms.
Can Your Own Company Sponsor You for H-1B Employment?
As you can see, it can be a bit tricky to own a business when you are an H-1B holder in the United States. However, once your business is established and prepared to support you full-time, your company can file an H-1B transfer petition for you. This allows you to switch your employer so that you can take on active ownership and employment of the business.
Keep in mind that the USCIS will require proof of a valid employer-employee relationship when your company sponsors you. So, your company must have the right to hire, fire, and supervise you even though you are technically the company’s owner.
Once you have filed your visa application with the USCIS, you can immediately start working full-time for your business. This can help you avoid any delays with running your company since it can take the USCIS anywhere between a few weeks to a few months to fully review your petition.
Alternative Options for Entrepreneurs
The USCIS provides a variety of immigration options that allow business owners, entrepreneurs, and start up founders to come to the United States to work. So, if the H-1B visa isn’t exactly what you’re looking for or has too many limitations, you have other options.
Here are some examples of alternative visa options that you can consider:
- O-1 visa: Another employment-based visa option is the O-1 visa, specifically designed for high achievers and those who can demonstrate extraordinary ability. It provides flexible criteria and unlimited extensions and is often the ideal option for venture backed founders.
- Self-petitioned green cards: Foreign workers with exceptional qualifications may be able to bypass employer sponsorship by pursuing a self-petitioned green card. This is a more direct immigration pathway that allows you to file for permanent residency on your own so that you can legally live and work in the U.S.
- E-2 visa: For those residing in a treaty country, you may qualify for an E-2 visa if you invest a substantial amount in a business in the U.S. If you own your own business, you may be able to qualify by investing in your own business, since you also need to have at least 50% ownership or hold a key managerial role.
An H-1B visa attorney can help you explore the other visa options you may have to determine what the best immigration pathway is.
Hire an Immigration Attorney Today
Are you wondering if you can work for your own company on an H-1B visa? Contact us today at U.S. Immigration Law Counsel at 800-666-4996 to speak with an immigration attorney about your situation. We will deal with the government, so you don’t have to!
FAQ Section
Can an H-1B holder form an LLC?
In most cases, yes. However, you must understand the difference between forming a legal business entity, such as an LLC, vs actually running and working for the business.
Can my startup sponsor my H-1B?
Yes. Your company can file an H-1B transfer petition for you, acting as your new sponsor so that you can take an active role in running your business. Keep in mind that your business must be able to satisfy the H-1B requirements; otherwise, the USCIS may reject the petition.
Can I run a side business while working for my H-1B employer?
H-1B holders only have authorization to work for the employer that sponsored them. So, running a side business would most likely create unauthorized employment issues, which could put your visa at risk.
