Starting a Business as an H-1B Visa Holder

The H-1B visa is a versatile way to enter the United States as a foreign worker. It also has the benefit of being “dual intent,” so once you’re in the country, you can start taking steps to obtaing your green card if you choose to do so.

This makes the H-1B a coveted visa for entrepreneurial minds with the dream of starting their own business. But can you be an H-B visa holder and an entrepreneur at the same time? This article tells you everything you need to know to make your dream of owning a business come true.

How to Move From an H-1B Employee to a Business Owner

You entered the US as an employee and are now ready to own your own business. The good news is that, under an H-1B visa, you can. The process for you is similar to that of US citizens, but you have a few extra hurdles to jump.

Because you’re a nonimmigrant, you must set up an official entity that controls your duties and salary until you have a green card. It may sound complicated, but your immigration attorney can help you. 

In short, you’ll be completing these steps in the process, many of which are required for any business owner:

●     Create a business plan that demonstrates you have a solid plan for success.

●     Research your business structure options, the pros and cons of each, and decide if you want to become an LLC, sole proprietorship, corporation, or corporate partnership.

●     Determine a name for your business and register it with the county and state government offices.

●     Request a Tax Identification Number (TIN) and Employer Identification Number (EIN) from the Internal Revenue Service (IRS). An EIN identifies your business as separate from your individual revenue.

●     Sign a lease for your business location, and obtain all licenses, permits, and certifications necessary to operate according to the state and federal government.

These are essential steps for business owners, but you may also need to obtain insurance policies like worker’s compensation and general coverage. Talk to your attorney about these requirements to ensure you’re covering all your legal bases. USCIS watches nonimmigrant business owners closely. You should be fine if you’re not violating the terms of your H-1B visa. 

Keep in mind that you can start a business, but you can’t work for it unless a board of directors or similar entity is in charge of hiring, paying, and firing you. You can’t have sole control. You’re treated like an employee while you’re a nonimmigrant.

Additionally, as an H-1B holder, you cannot be the sole proprietor, and the company can’t be why you’re attempting to secure the H-1B visa. This makes sense in that you told the government you were entering the US as an employee for work purposes. If starting a business was your original intent, USCIS may see you as falsely representing yourself.

Separate Entities in a Business Startup

Self-employed beneficiaries under an H-1B visa must have a separate entity petitioning on their behalf. You’ll need an outside entity to act as your board of directors or CEO. This gives them control of your tasks, wages, and overall job status.

It can be challenging as a startup to find someone willing to take on this role, particularly if you’re outside the US when you’re trying to start a business. You’ll need a domestic agent and someone well-versed in immigration laws to take you through the process.

General Thoughts On Owning a Business as an H-1B Holder

There are almost endless ways to make a living as a business owner from your home country and outside the US while you’re there as an H-1B holder. Provided the business doesn’t violate any of your H-1B regulations — you’re following the legal requirements in the US and other countries where your business operates — you can freelance or own a business.

However, if you try to work under the H-1B visa outside the US, such as for a short- or long-term job assignment, you’ll need to be cautious of USCIS rules. According to the Labor Condition Approval (LCA), your work must take place within normal commuting distance of the job site in the LCA. This is usually within 50 miles of that address.

If your new job site is further than that or will keep you away from the original location for longer than 60 days, you must take steps to be in compliance with USCIS. Your immigration attorney can guide you on which forms you need to complete in these situations.

What’s Next?

If you violate the H-1B terms by starting your own company and running it as the CEO, you’ll be in violation of the original visa, and if USCIS finds out, it will likely be revoked. The only problem here is that you want to follow the laws and regulations, but it can be complicated.

The good news is that you don’t have to do this alone. 

Contact Visa2US and let our immigration law experts help you navigate this exciting but confusing journey. Our professional staff is available 24/7 to answer your questions as a burgeoning entrepreneur and for all your other nonimmigrant visa concerns.

Skip the research part for your immigration application.

Simply answer questions we prepared for you and the completed forms are ready!

H-1B Visa

H-1B Visa

H-1B visa is used by businesses and organizations in the United States to employ foreign nationals with the preferred qualifications, knowledge, and expertise in a role.

I-485 Adjustment of Status

I-485 Adjustment of Status

Submit a form I-485 application to apply for lawful permanent resident status.

National Interest Waiver (NIW)

National Interest Waiver (NIW)

An applicant must either hold an advanced degree or have an exceptional ability in their field that would substantially benefit the U.S. to be qualified.