Firstly, there is no straight answer to whether a person on H-1B can start his/her own business. That’s because one has to carefully interpret the language used by the USCIS and make sure the needs of the H-1B holder are tailored without violating any of the regulations. Hence, if all the rules are followed then a H-1B holder can start his/her own company.
The H-1B employment visa is a visa for nonimmigrants who are coming to The US to work in professional occupations. It is true that a H-1B holder can start a business in the US but, one should be aware of the two types:
- A business in which the H-1B holder is passive and does not have a major role in the business
- A business in which the H-1B holder is the owner and also is an employee
H-1B holder – Not an Employee:
In cases where the H-1B holder is not an employee of the business, the regulations are slightly liberal. In this case the, the H-1B holder can start his own business as a sole proprietary.
- The H – 1B holder has an American company that is sponsoring his H-1B visa at all times. (This is important to maintain lawful status in the United States)
- The H-1B holder only has a passive role and does not have a major role in the business. (This is important to establish that the H-1B holder is not indulged in unauthorized employment.)
- Hire employees to manage the business on a day-to-day basis (This is to ensure that the H-1B holder is not taking away a potential opportunity from an American worker, by working in his/her company)
- The H-1B holder’s involvement in the business should be as a passive shareholder/investor.
H-1B holder – an Employee:
In cases where the H-1B holder is an employee of the business, the regulations are stringent. In this case the, the H-1B holder cannot start his/her own business as a sole proprietary.
- The H-1B holder should not be a sole Proprietor
- The company should have a separate Board of directors who can control the H-1B holder as an employee. (This is important to establish that there exists an Employer-Employee relation and that this company is not created only for the sake of obtaining a H-1B visa.)
- The H-1B holder must hold a bachelor’s degree or higher or its equivalent in the required field.
If all of these criteria are met, the H-1B holder may be able to start a business in any state in the U.S. and work for that business under H-1B Visa.
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