If you are in the U.S. on a visa, you are only permitted to engage in activities consistent with that visa. We often think of visas as containing a bundle of rights, and you only have the right to do things that are included in that bundle. For example, someone on an H-1B visa, can only work for the employer designated in the petition. They can also go to school and conduct other tourism activities. Similarly, someone in F status, can go to school, but cannot work while in the U.S. unless they are on CPT or OPT. Finally, someone on an E-2 visa has the right to work at the E-2 enterprise only, and can also go to school in the U.S.
One questions that often comes up is: Can I own a company in the U.S. without a visa?
The clear answer to this question is yes.
Anyone can own a company in the U.S., and the person can also receive distributions (income) from that company. For example, if an E-2 investor who is here running a restaurant, buys a dry cleaning business, he/she can own it and collect distributions from the dry cleaning business. A visa is not required for this and this can be done while someone is in the U.S. (eg. someone on an E-2, H-1B or F-1 visa), or someone living outside of the U.S. The owner can collect distributions from the company and there is no requirement that the company is co-owned. The owner can also hire employees to run the business.
The person cannot work at the company though. For example, someone here on an E-2 visa can only work for the E-2 company.
The concept of what constitutes work is not as clear, but the more connection or interaction you have with the company, the more an officer may conclude that you are working there. You should never pay yourself as a W-2 employee if you do not have a proper work visa, and your interaction with and direction of the company should be very limited. Your visits to the premises should be minimal, and you should have employees in place that can perform all of the relevant business activities. If on an E-2 visa, you may also want to consider getting your spouse to run the business as they can get work authorization. The fact that you are the owner and living in the U.S. would make most officers lean towards the conclusion that you work at the company, so you should have evidence to show that your connection with the entity is minimal.
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