If you want to start your own business while you are in the U.S. on an H-1B visa, you could apply either for a new H-B visa (the new company would sponsor you) or other type of visa. One issue that often comes up is if you would be the sole/majority owner of the U.S. company.
You are in the U.S. on an H-1B visa. You are thinking about starting your own consulting company that would provide services to U.S. clients. Is this allowed on an H-1B visa? Should you switch to a different visa?
This is What is an H-1B visa?
The H-1B visa is a non-immigrant visa that permits a company to hire workers in specialty occupations. This visa category requires that the beneficiary (the foreign worker) have a bachelor’s degree, and the petitioner (the U.S. company) can employ the worker for up to six years.
H-1B visa is a highly regulated visa category, and as part of the H-1B filing process, the petitioner (the U.S. company) has to file a Labor Condition Application (“LCA”) with the Department of Labor. In this petition, the company specifies information such as what will be your position in the U.S., where you will work, how much money you will be paid. If the LCA gets approved, the U.S. company has to then provide even more details to USCIS in the H-1B petition (such as what will be your exact job duties).
If the H-1B petition gets approved, you will be allowed to work for the company that sponsored you in a role that was described in the H-1B petition. Any substantial changes in your duties/employment would have to be reported to USCIS. This means, that the H-1B visa is an employer & job specific visa.
Can I start my own business in the U.S. on an H-1B visa?
This depends. You could set up a company in the U.S. & hire employees, and as long as you would not do any work for that company and you would not be paid by the company, mere ownership would be fine.
What is not allowed is setting up a company and performing work for that company. In the example above, you could not perform any consulting work for the U.S. company and you would have to hire employees that would do the actual work and you could not get paid by the U.S. company.
Here are some options how you could proceed if you want to work for a different company than the one that originally sponsored you for the H-1B visa:
- You could start working part time for your current employer and your new company could also sponsor you for a part time H-1B visa (this is called concurrent H-1B employment). Please note that the role you want to perform in the new company would have to be a specialty occupation and you would have to meet all the other H-1B requirements . Additionally, if you have ownership interest in a U.S. company and that company is sponsoring you for an H-1B visa, you have to show that there is an employer-employee relationship between the U.S. company and you, meaning that the company can hire, pay, fire or otherwise control your work. This means that if you are a sole owner in an LLC and there are no other directors/board members and you don’t report to anyone, then you would not be able to meet this requirement.
- Alternatively, you could start working full time for the new company. Please note that in this and the above example, you can only start working for the new company once the new H1b petition is approved by USCIS. Additionally, if you have an ownership interest in the company, you would still need to meet the employer-employee requirement as described above.
- You could change status/apply at the Consulate for an E-2 investor visa. If your goal is to start a company in the U.S., invest money in the U.S., and employ U.S. employees, an E-2 visa could be a great option for you. You could then work for the U.S. company full-time.
- Depending on the services you want to provide, you could also qualify for an E-1 treaty trader visa.
- Additionally, depending on your nationality and the area of expertise and if you have an extraordinary ability in your field, you could also qualify for a TN or an O-1 visa.
You should speak with an experienced immigration attorney before setting up a U.S. company as you want to make sure that you don’t engage in any activities that could be considered as a violation of your current immigration status in the U.S.
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