As a non-immigrant on H-1B status, it is possible to own a business in the United States, even 100%. However, it is crucial to understand that certain activities associated with business ownership could be viewed as unauthorized employment under the Immigration and Nationality Act (INA). The INA prohibits non-immigrants from engaging in unauthorized employment in the United States. This means that an H-1B visa holder can own a business, but they cannot participate in any work that is not authorized by the visa or inconsistent with its terms and conditions.
Accusations of unauthorized employment often come up during immigration filings or travel and return from abroad if USCIS or other immigration authorities come across a LinkedIn profile, website, business card, internet listing or emails that suggest you hold an employee position in your company. To avoid allegations of unauthorized employment, and to defend against them, H-1B visa holders can take two effective measures. The first way is by having the business file a concurrent H-1B petition for the employee. This permits the visa holder to work for the business and perform tasks associated with their specialized knowledge and skills. The concurrent H-1B petition is filed in addition to the original H-1B petition that was filed by the original H-1B employer. This allows the visa holder to work for both the original employer and the business they own without engaging in any unauthorized employment.
It is important to note that even start-up and pre-revenue companies with few or no employees can qualify to petition for H-1B employees. For more information on how to determine if a company qualifies for the H-1B process, watch our video on H-1B qualifications.
It is important to note that like in all H-1B petition cases, the business and employee must have a bona fide employer-employee relationship. This means that even though you may own the company, there is an independent board of directors that can determine whether to hire or fire you without regard to your vote. If you do not have this structure in place, you should certainly implement it prior to starting the process.
The second way to avoid unauthorized employment, if you do not intend on working for the organization, is by hiring a General Manager and having a written, signed, and dated contract that explicitly states that the GM is in charge of overseeing the business and the day-to-day responsibilities of the employees. This provides evidence in the event of an accusation of unauthorized employment by USCIS or any other immigration enforcement agency.
By hiring a General Manager, the H-1B visa holder can delegate day-to-day responsibilities and avoid engaging in any work that could be considered unauthorized employment. The contract between the General Manager and the business must clearly outline their duties and responsibilities, compensation, and benefits.
In conclusion, owning a business as an H-1B visa holder is allowed, as long as the activities associated with the business do not involve unauthorized employment. To avoid allegations of unauthorized employment, H-1B visa holders can file a concurrent H-1B petition for the employee or hire a General Manager with a written contract that clearly outlines their duties and responsibilities. These measures can provide evidence of compliance with immigration laws and regulations in the event of an accusation of unauthorized employment. It is crucial to seek the assistance of an experienced immigration attorney to ensure compliance with all applicable laws and regulations.
If you have any questions specific to your case, or need more information, call our office to schedule a phone consultation with a Senior Attorney at Jeelani Law Firm.