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Video - H-1B

Starting a Business on H-1B Status

By June 5, 2023May 16th, 2024No Comments

Transcript: How can an H-1B employee own and operate a business in the United States?

Hi, everyone. I’m attorney Hashim Jeelani, principal at Jeelani Law Firm. Over the last 10 years, Jeelani Law Firm has successfully filed thousands of immigration cases with immigration agencies throughout the United States and overseas.

Our attorneys are frequently asked whether and how an individual on an H-1B status can own a business in the United States and perhaps even work for it. As a non-immigrant on H-1B status, it is absolutely possible to own a business in the U.S., even 100 percent. 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, otherwise known as the INA. The INA prohibits non-immigrants from engaging in unauthorized employment in the U.S. 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. Of course, as we’ll discuss, there is a way to get this authorization.

It is important to note that accusations of unauthorized employment often come up during immigration filings, or travel and return from abroad. Typically USCIS or other immigration authorities such as CBP, come across a LinkedIn profile, website, internet listing, emails, or other indicia that you may hold an employment position in your company. To avoid allegations of unauthorized employment and defend against them, H-1B visa holders can take two effective measures. The first way is by having your business file a concurrent H-1B petition for the H-1B employee. This permits the H-1B employee 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. Also, by filing a concurrent petition, in the event the petition is denied by USCIS, this has no impact whatsoever on your H-1B status with your current employer.

It is important to note that even startup 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 also crucial to note that, as 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’s an independent board of directors that can determine whether to hire or fire you, without regard to your vote. If you do not have the structure in place, you should certainly implement it prior to starting the H-1B process.

The second way to avoid allegations of unauthorized employment, if you do not intend to work 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 an accusation of unauthorized employment by USCIS, or any other immigration enforcement agency, is made. 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 or construed as unauthorized employment. The contract between the general manager and the business must clearly outline their duties and responsibilities, compensation, as well as the benefit.

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. Thanks for watching this video. I’m attorney Hashim Jeelani. Don’t forget to click the like, subscribe, and bell buttons to be notified every time I upload a new video.

Jeelani Law Firm, PLC

JEELANI LAW FIRM, PLC is regarded as one of the top immigration law firms in the industry. We handle all immigration matters including family based adjustment of status/green card cases, citizenship filings, representation of businesses and employees when filing L1A/B Petitions, H1B petitions, and Permanent Labor petitions. Our firm also litigates immigration cases dealing with delayed adjudications as well as appellate matters before the U.S. Federal Courts, U.S. Immigration Courts, USCIS and the BIA. Given the complex nature of immigration law, inexperience can lead to many mistakes which may result in delays, denials, and loss of filing fees and valuable time. Contact our office and we will take care of the rest.