As an immigration attorney with over 35 years of experience, I often get asked about the possibilities of starting a company while on an H-1B visa. The H-1B visa is a popular non-immigrant visa that allows foreign nationals to work in the United States, but there are some important caveats and limitations to be aware of when it comes to entrepreneurship. In this comprehensive blog post, I’ll dive deep into the details of the H-1B visa and explore whether it’s possible to start your own company while holding this type of visa.

Understanding the H-1B Visa

The H-1B visa is a temporary work visa that allows foreign nationals to work in the United States in a specialty occupation. To qualify for an H-1B visa, you must meet several key requirements:

• You must have at least a bachelor’s degree (or its equivalent) in a field related to the job you will be performing.
• The job you will be performing must be a specialty occupation, which means it requires the theoretical and practical application of a body of highly specialized knowledge.
• You must have a sponsoring employer in the United States who will petition for your H-1B visa and agree to pay you the prevailing wage for the occupation as determined by the Department of Labor.

One of the most important things to understand about the H-1B visa is that it is an employer-sponsored visa. This means that you cannot apply for an H-1B visa on your own – you must have a sponsoring employer who will petition for your visa and agree to employ you. The sponsoring employer must also demonstrate that they have a legitimate need for your services and that they can pay you the required prevailing wage.

Another key aspect of the H-1B visa is the annual quota. The U.S. government only issues 65,000 new H-1B visas each year, with an additional 20,000 visas available for individuals who have earned a master’s degree or higher from a U.S. institution. This means that the H-1B visa program is highly competitive, and it’s important to apply as early as possible to increase your chances of being selected.

Can I Start a Company on an H-1B Visa?

The short answer is yes, it is possible to start a company while holding an H-1B visa, but there are some important caveats and limitations to be aware of.

First and foremost, it’s important to understand that the H-1B visa is an employer-sponsored visa, which means that you must maintain an employer-employee relationship with the sponsoring company. This means that you cannot be a majority owner or partner in a company while holding an H-1B visa. Instead, you must be an employee of the company, with the company serving as your sponsor and agreeing to pay you the prevailing wage for your occupation.

That being said, it is possible to start a company and use that company to sponsor your H-1B visa, as long as the company meets certain criteria. The company must be a legitimate, profit-making entity with a valid business license, tax filings, and the ability to pay the required prevailing wage. The company must also demonstrate that it has a genuine need for your services and that you possess the necessary qualifications and experience to perform the job duties.

It’s important to note that starting a company while on an H-1B visa can be a complex and risky endeavor. Immigration authorities will closely scrutinize the company and your role within it to ensure that you are not violating the terms of your visa. If the company is found to be a sham or if you are found to be acting as a majority owner or partner, your H-1B visa may be revoked and you could face serious consequences, including deportation.

Additionally, if you decide to change employers while on an H-1B visa, you will need to have your new employer file a new H-1B petition on your behalf. This means that you will need to go through the entire H-1B application process again, including demonstrating that the new employer has a legitimate need for your services and can pay the required prevailing wage.

Pathways to Permanent Residency

One of the key benefits of the H-1B visa is that it can serve as a pathway to permanent residency, or a “green card,” in the United States. While the H-1B visa is a temporary work visa, it is possible to use it as a stepping stone towards obtaining a green card.

The most common pathway for H-1B visa holders to obtain a green card is through the employment-based green card process, known as the EB-5 visa. This process involves your sponsoring employer filing a labor certification application with the Department of Labor, followed by a petition with U.S. Citizenship and Immigration Services (USCIS) for an EB-5 visa.

It’s important to note that the EB-5 visa process can be lengthy and complex, and there are no guarantees that your application will be approved. Additionally, if you decide to change employers while on an H-1B visa, you may need to start the EB-5 process over again with your new employer.

Another potential pathway to permanent residency for H-1B visa holders is through the EB-5 investor visa program. This program allows foreign nationals to obtain a green card by investing a minimum of $900,000 (or $1.8 million in certain high-cost areas) in a new commercial enterprise that creates at least 10 full-time jobs for U.S. workers.

If you’re interested in learning more about the EB-5 investor visa program, I encourage you to check out our video on the topic. In this video, I provide a comprehensive overview of the EB-5 program, including the eligibility requirements, the application process, and the potential benefits of this type of visa.

Common Questions and Concerns

As an immigration attorney, I’ve heard a lot of common questions and concerns from H-1B visa holders who are interested in starting their own companies. Here are some of the most frequently asked questions and my responses:

Can I Start a Side Business While on an H-1B Visa?

No, you cannot start a side business or engage in any other employment while on an H-1B visa. The H-1B visa is an employer-sponsored visa, which means that you must maintain an employer-employee relationship with the sponsoring company. You cannot work for or receive any compensation from any other company or business while on an H-1B visa.

Can My Spouse Start a Business While I’m on an H-1B Visa?

Yes, your spouse may be able to start a business while you’re on an H-1B visa, as long as they are not employed by the business. Your spouse can be a passive investor or owner in the business, but they cannot be an active employee or receive any compensation from the business.

What Happens if I Lose My Job While on an H-1B Visa?

If you lose your job while on an H-1B visa, you have a limited amount of time to find a new sponsoring employer. Typically, you have 60 days to find a new job and have your new employer file a new H-1B petition on your behalf. If you are unable to find a new job within that timeframe, you may be required to leave the United States.

Important Reminders for H-1B Visa Holders

As an immigration attorney, I always emphasize the importance of following the rules and regulations of the H-1B visa program. Here are some key reminders for H-1B visa holders:

• You must maintain an employer-employee relationship with the sponsoring company. You cannot be a majority owner or partner in the company.
• You must be paid the prevailing wage for your occupation as determined by the Department of Labor. Your employer cannot pay you less than the prevailing wage.
• You must work for the sponsoring company. You cannot work for any other company or business while on an H-1B visa.
• If you decide to change employers, your new employer must file a new H-1B petition on your behalf. You cannot simply transfer your H-1B visa to a new employer.
• The H-1B visa is valid for an initial period of three years, and it can be renewed for an additional three years. After six years, you may need to leave the United States for at least one year before you can apply for another H-1B visa.

If you have any questions or concerns about the H-1B visa program or starting a company while on an H-1B visa, I encourage you to schedule a consultation with me. As an experienced immigration attorney, I can help you navigate the complex legal landscape and ensure that you are in compliance with all applicable laws and regulations.

Remember, starting a company while on an H-1B visa can be a complex and risky endeavor, so it’s important to seek the guidance of an experienced immigration attorney to ensure that you are doing so in a way that is compliant with the law.