Based in Sydney, Australia, Foundry is a blog by Rebecca Thao. Her posts explore modern architecture through photos and quotes by influential architects, engineers, and artists.

If You Are on a H-1B Visa, Can You Incorporate Your Own Startup and Build Your Business?

We’re continually asked this question at LawTrades and help people who are exactly in the same shoes as you are find the solution that’s both affordable and best serves their needs. Sometimes it’s applying for a new H1B from the startup; other times there are better alternatives.

The two main routes are either immigrant or nonimmigrant visas.

Nonimmigrant Visas

Foreign entrepreneurs commonly obtain H-1Bs, because these nonimmigrant visas are generally available to a company’s employees and pretty straightforward. The downside is that there’s a cap of 65,000 for regular H1Bs, and a cap of 20,000 for Masters Degree H1Bs - and the competition is intense. They also expire after six years and require a minimum one year leave outside the US after the 6-year expiration. There are some exceptions, but they only offer extensions of between one and three years.

Your current H1B work-authorization is limited to employment with your sponsoring employer. If you’re dismissed or quit your position with the sponsoring employer, you’re required to apply for alternative nonimmigrant status, secure employment with another employer, or leave the U.S. If you find employment with a different employer, then a new application must be filed and your visa status modified to reflect the reclassification. However, this is not going to help you necessarily start a new business in the US.

Other nonimmigrant visas that might help you include an F-1/OPT (Optional Practical Training) visa, which is available to students who meet certain requirements. You can learn more about those from my recent post here on Quora. If you don’t qualify as a student, you could be eligible for a B-1 Business Visitor visa. An E-2 Treaty Investor visa is available to individuals from treaty countries, which may or may not help you.

The O-1A Extraordinary Ability and Achievement visa has been effective for many entrepreneurs. This nonimmigrant visa is available to individuals who meet the legal definition of “exceptional abilities” in the arts, sciences, education, business or athletics. Here’s the breakdown on O1s:

  • O-1A: Individuals with extraordinary ability in the sciences, education, business, or athletics (excluding the arts, motion pictures or television industry).
  • O-1B: Individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry.
  • O-2: Individuals who will accompany an O-1 artist or athlete to assist in a specific event or performance.
  • O-3: Individuals who are the spouse or children of O-1’s and O-2’s

Immigrant visas

These are typically EB-1, EB-2 or EB-5 visas.

  • EB-1 Extraordinary Ability Visa

An EB-1 visa is used to obtain employment-based permanent residency. It’s generally intended for “priority workers” who are identified as foreign workers with “extraordinary abilities.” This classification usually consists of senior executives and managers who are transferred to the U.S. and those who qualify as “outstanding professors or researchers.”

  • EB-2 Advanced Degree Professional and Exceptional Ability Immigrant Visas

These visas generally require proof of a job offer from an employer and a DOL labor certification. EB-2 visas occasionally are granted to individuals who are seeking to waive the DOL labor certification. Specifically, subsection (C) does not require an applicant to have an employer. An advanced degree (masters and higher) or an exceptional ability in your field are required in addition to showing that the defined exceptional ability is in the national interest of the United States.

  • EB-5 Immigrant Investor Visa

This visa requires at least a $1 million dollar investment ($950,000 dollars if the business or investment is located in a rural area). This program allows entrepreneurs, their spouses, and unmarried children under the age of 21 to apply for a green card (i.e., permanent residence) if they meet the following requirements:

  • Make the necessary investment in a commercial enterprise within the U.S.; and
  • Plan to create or preserve ten permanent full-time jobs for qualified U.S. workers.

The USCIS has more information here for foreign entrepreneurs.

Engaging an immigration attorney is strongly recommended since the procedures for obtaining any of these visas are pretty complicated. 

 

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