Can You Do Business In the USA on Your Current Visa?
Hello, everyone. This is Rajiv S. Khanna for the Law Offices of Rajiv S. Khanna, P.C, immigration.com.
You can post comments and questions on immigration.com. I usually respond within three or four days, sometimes a week. I’m going to answer one of the questions someone asked us on immigration.com.
Can I start a business on an H-1 visa?
The bottom line is yes, as long as you are in a situation where, even though you are working for your own company, somebody in the company can file. It must be a true employer/employee relationship. How does that work? What if you have a board of directors or if you have a CEO to whom you report, even though you are a stockholder or maybe even you even have majority of stock in the company, but somebody in the company can file, you’re okay. USCIS has indicated that is their present stance. You must have an employer/employee relationship if you want to be able to start your own business on H-1.
In addition to that, remember H-1 is for a specific employer. So if you want to have a concurrent employment with your own company or you want to change companies and go over full time to your own company, you can do that, but you have to process a H-1, either a concurrent H-1 or a successive H-1. One of the things you need to remember is, if you own majority stock in the company, or if you have influence over the management of the company, it will be very difficult if not impossible for you to do a Green Card through PERM through your own company.
Where does that leave us? There’s a whole history behind this H-1. I won’t go through the history. USCIS has gone up and down. “You can do it.” “You cannot do it.” There is a whole history behind this. But the bottom line today is, you can do it, but it definitely requires some in-depth consulting with a lawyer. Make sure you are not getting into a situation which is going to hurt your stance.
Here is another question I get asked.
I have an EAD through 485. Can I now start my business?
Sure. On the side, you can, as long as you don’t leave your current job. But, remember, you will then no longer be on H-1. You will be on EAD if you start working for your own company.
I actually have a whole list of visas.
Can I do business on E-2?
Yes, of course. E-2 visas, which are treaty investor visas, are meant to do business. E-1, treaty trader, the same thing. But only a few countries in the world have a treaty with the United States to do E-1/E-2 visas, so you have to make sure that the country you come from has that.
If I’m here on a tourist visa or a B-1, which is called a business visa, can I do business?
The answer is, you can negotiate contracts, you can shake hands, and you can even set up a company, but, if you actively participate in business, you are violating the terms of B visa. B-1, which is the business visa, is a misnomer. You start thinking, I have business visa; maybe I can start a business. But you can’t do it on B-1.
Can I start a business on F-1 visa?
Of course not. You are a student.
What if I am on my optional practical training and I have my F-1 EAD?
Maybe, but only for the time you have the EAD. Again, that is something to be explored. Don’t just jump into it. Make sure you understand the ramifications of what you’re doing.
What about on a G visa?
On G-4, of course, the primary applicant of G-4 is engaged in working for a multinational organization such as the World Bank or the IMF. They cannot do business, but what about their dependents? I haven’t looked into it specifically. I suspect that they can, because they do get an EAD and that EAD is not confined to a specific purpose, but I would have to check on that. I’m just speaking off the top of my head. I was primarily answering the H-1 question, but I want to share with you what I know. So, G-4, probably yes.
H-4? Absolutely not.
H-1? As long as you can be fired.
I visa? No.
J-2 visa? Yes, as long as you have an EAD.
K visa? K visas are all work authorized, so, yes, you can do business.
L-1? No, because you’re working for a company.
L-2? Yes, because you get an EAD.
M Visa? No.
I went through the whole gamut, just to give you a rough idea; more so, to sensitize you to who can and who cannot do business.
Thank you for listening.
Currently, I am holding a STEM OPT from May 2022 until May 2024 (2 years).
My employer had applied for H1B this year and last year but had no luck.
Question and suggestion, please:
1) What are my legal options?
1.1 Apply for H1b next year in March and wait for the result, In case H1b is picked, how do I process it as my STEM opt expires in May 2024?
2) Enroll in university for the Master's degree?
2.1 I have a few classes remaining for my master's as I have finished my bachelor's degree in the USA and I take Day One CPT? Once a master's degree is complete, reapply for OPT and STEM OPT.
2.2 Should I continue to apply for H1B in the meantime?
3) If I apply for Master and Day One CPT, do I need to enroll for May–August 2024 (the summer class) or can I enroll for Fall 2024?
Note: STEM OPT Expires: May 15, 2024, or please suggest any other better option to stay in the USA.
Lastly, my passport expires in May 2024 as well. Is there any problem there?
- I'm thinking of starting the process for the renewal online. Should I do it now or wait for some time?
OPT can be applied at the next higher educational level. For instance, if your first OPT was based on a master's degree, you would need to pursue a higher level of education, such as a PhD, to apply for another OPT.
Regarding your passport expiration, it shouldn't be a significant issue. You have the option of expedited passport processing, which can help you get your passport renewed quickly. Overall, it should not cause major complications, and you should be fine.
For more information on your question please visit the blog section:
The travel bans necessitated by the COVID pandemic have created much flux and uncertainty. Synthesizing the information now finally available from various US government sources, it is clearer now that many intending travelers can seek and obtain an exemption from the ban under a series of provisions for a National Interest Exception (NIE).
You should be able to apply for an NIE to overcome the ban on travel to the USA if you meet any one or more of the following categories:
[Federal Register Volume 78, Number 108 (Wednesday, June 5, 2013)]
[Rules and Regulations]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-13315]
DEPARTMENT OF STATE
22 CFR Part 41
[Public Notice 8348]
Visas: Classification of Immediate Family Members as G
AGENCY: State Department.
ACTION: Final rule.
1. I'm on a G4 and have an offer to move to a US based company in a management role. They have offered to file for an H1B in the next few days on premium processing. Although premimum processing requires 15 days or so for an approval, the visa stamping does not happen until October 2010. That's too long to wait to move. What are my options to transition more smoothly from G4 to H1B?
2. Can they apply for a GC after I have an H1B approval?
If you are subject to the quota, I cannot think of how you can start earlier than 1st October, unless you have unique skills or circumstances. Once on H-1, you are like anyone else. Your green card can be filed because you would already have waived your privileges and immunities.
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