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Visa Basics for Foreign Entrepreneurs Coming to the U.S.

Seal of the US Citizenship and Immigration Services, from wich a work visa may be obtained

Non-immigrant foreign entrepreneurs who want to start businesses in the U.S. often – and rightly – have visa-related concerns. A typical question: “What kind of visa do I need to start my business?”

This post provides a brief answer to that question.

Visa Waiver

Allows an individual to come to the U.S. for 90 days. No extension or change of status is allowed. Allows attendance at business meetings and other passive business development activities. Does not allow compensation from U.S. sources.

B-1 Visa

Business visitor visa: Allows admission for up to six months. Can be extended, and permits a change to a different immigration status. Allows passive business activities, but not productive work in the U.S. or receipt of any U.S.-based remuneration. However, expenses can be reimbursed. Must benefit a foreign, rather than U.S., business.

E-2 Visa

Investor visa: Requires that a U.S. entity be set up and that a substantial investment made into that entity. Takes several months to obtain and is comparatively expensive. Applies to investors from countries with which the U.S. has applicable treaties. Applies for two years. May be extended for additional two-year periods without limitation.

H-1B Visa

Specialty occupation visa: Allows a U.S. employer to hire an individual for a specified complex or unique job for a period of up to three years because the position cannot be filled easily from the workforce available in the U.S. Typically can be extended to six years. The individual can form a business in the U.S. but cannot work for it. Note that USCIS gives H-1B cases particularly careful scrutiny.

L-1 Visa

Intracompany Transferee visa: Requires setting up a U.S. company that is a subsidiary or affiliate of an existing foreign company. The individual must have been working for the foreign company for at least one year prior to the transfer. The individual must be working in the U.S. in a managerial, executive or specialized-knowledge capacity. Valid for five years (special-knowledge employees) or seven years (managers or executives). “Dual intent” visa, meaning the holder can apply for a green card without jeopardizing the visa.

The U.S. Department of State offers more-detailed information starting at its Temporary Workers Overview page.

Visa issues can be quite complex. If you have visa-related questions, you should retain a qualified immigration lawyer.

Related posts:

Dana H. Shultz, Attorney at Law  +1 510 547-0545  dana [at] danashultz [dot] com
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact a lawyer directly.

  1. 8/4/2010 | 11:08 pm Permalink

    Thanks for that Dana. Just wondering though, how come I can not sponsor myself for an H-1B visa if I already have a business entity in the US?

  2. 8/5/2010 | 5:51 am Permalink

    @Joshua
    Aside from the limit on the number of H-1B visas available each year, the business entity would have to obtain a U.S. Department of Foreign Labor Certification. This requires that the employer show, for a bona fide job position with a viable company, that there are insufficient qualified U. S. workers available and willing to perform the work at the prevailing wage paid for the occupation. It is difficult to see how the founder of a startup entity could succeed in making this showing for himself.

  3. 8/20/2010 | 12:54 pm Permalink

    dana, pleas help me with the following situation: i come in USA (though i know what visa should apply for), start up a small business, and place some adds in the local paper that i am hiring people to work for my business. I set the wage around, lets say 3$/hour. Nobody shows up to be hired and….by this i can hire myself. Is this working (legally speaking)? For how long do i have to wait before i can hire myself? Of course, i have the “wicked” idea to place in the add, the following sentence: “as requirements the future employer must speak fluently my home language.
    What do you think about that?

  4. 8/20/2010 | 1:40 pm Permalink

    @claudiu
    First, the disclaimer: We have not entered into an attorney-client relationship, so the following is not intended as, and does not constitute, legal advice.
    I must be missing something, because I don’t see how your scheme will help you. If you don’t have a visa that allows you to work in the U.S., you can’t work here. I don’t understand the idea of placing a job advertisement for a position you don’t really want to fill.

  5. 11/19/2010 | 11:33 am Permalink

    Hello Dana and thank you for answering these questions.
    I have a business idea for a service that can add a lot of value in toursim/restauration. If a US citizen is my business partner and I’m a canadian citizen is there a possibility of opening up a business? is their a % required in terms of being majority/minority shareholder? what type of Visa should I use then? (if the option is valid)

    thank you again for taking the time,

  6. 11/19/2010 | 6:21 pm Permalink

    @Seraca
    There is no problem with your being a founder / owner of the business – no visa is required. A visa will be required if you want to work for the business in the U.S., however. I gather that the new business will not be a branch of any existing business that you might have in Canada (thus L-1 is inapplicable), so your only (perhaps) practical alternative will be an E-2 visa, which requires that you invest a lot of money (e.g., US$100,000 or more).

  7. 1/20/2011 | 3:53 pm Permalink

    Hi Dana,

    I’m curious. My fiance is moving here on a K-1 Visa and once we are married we will be filing for Adjustment of Status to LPR. Will he be permitted to work remotely for his current foreign Training company, training his U.S. clients lawfully?

    Since he will be entering on a K1 visa and not VWP at that time, I don’t know if it changes things or not.

  8. 1/20/2011 | 7:12 pm Permalink

    All the K-1 will allow him to do is to marry you within 90 days of entering the U.S.; it is not a work visa. Once he has LPR status, he may hold any job at any company.

  9. 2/19/2011 | 7:34 pm Permalink

    Can I open a company in the US as a Canadian and still go on vacation in the US 6 months a year?
    I will not be working in this company and will be the sole owner.
    Can I currently startup this business while I am in USA -i.e begin corporate paperwork, rent and employment arrangements or must I do everything from Canada since I do not have a Visa?

  10. 2/21/2011 | 11:36 am Permalink

    @Henry
    It is difficult to provide a definitive statement of the boundary between permissible formation activities and impermissible work activities. (This topic is discussed in the related post “Visa Basics for Foreign Entrepreneurs, Part 2: What Constitutes Work?” – please see the link above.) As concerns the activities referenced in your question, “corporate paperwork” appears to be a permissible formation activity, but “rent and employment arrangements” appear to be impermissible work activities.

  11. 3/14/2011 | 5:45 pm Permalink

    Hi Dana,

    From 2007 until 2009, I’ve been the manager for a real estate company in the Netherlands that is now interested in opening up a daughter company in the US. If I take up their project, could I obtain an L-1 visa through their company or does the “one out of three years” prior to the transfer have to be without (temporarily) quitting?

  12. 3/14/2011 | 6:44 pm Permalink

    @Maria
    The applicable regulations say nothing about continuous employment without quitting. From 8 CFR Section 214.2(l)(1)(ii)(A): “Intracompany transferee means an alien who, within three years preceding the time of his or her application for admission into the United States, has been employed abroad continuously for one year by a firm or corporation or other legal entity or parent, branch, affiliate, or subsidiary thereof, and who seeks to enter the United States temporarily in order to render his or her services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity that is managerial, executive , or involves specialized knowledge.”

  13. 3/15/2011 | 12:28 am Permalink

    @Dana
    Thank you for your quick reply Dana!
    I stopped working for the company in February 2010 (and started October 2007). In your understanding, would that mean that my last chance to apply through them is February 2012 or February 2013?

  14. 3/15/2011 | 2:59 am Permalink

    @Maria
    You would have to apply by February 2012, because February 2009 would be the start of the “three years preceding” and the start of your last year with the company.

  15. 3/27/2011 | 6:47 am Permalink

    Hi, Dana how are you?

    I have a start-up and I am a US citizen. However one of my main partner is F-1 visa status student. Can she be a director of the company (passive role) and also invest in the company as a stockholder? I am not looking for her to become an officer and help me run the company but I would still like her to be involved in some extent.

    Thank you very much.

  16. 3/27/2011 | 11:57 am Permalink

    @sean
    Stockholder is fine. Director should be OK so long as her role really is passive – for example, approving resolutions rather than managing operations or personnel.

  17. 3/27/2011 | 1:40 pm Permalink

    Thank you very much for your prompt response! :)

  18. 6/25/2011 | 9:03 pm Permalink

    hello Dana,
    I am working for a employer in US on L1R visa. I am also building a startup product and company with a friend. I am not earning anything from it. I am also not using my current employers time and resources. I am also not using any IP of my current employer and domain of both is quite different. Is it illegal ?. I will be one of the founder on papers. I have not told my current employer about such involvement. what should I do ?

  19. 6/27/2011 | 12:51 pm Permalink

    @GJ
    I’m sorry, but your questions are both too detailed and too broad in scope to be suitable for answering on a blog. You should consider retaining a lawyer to guide you.

  20. 7/16/2011 | 11:24 pm Permalink

    Hello Dana ,

    can you please tell me – if at f-1 status we can own 50% stock of a “C corp” and stay a passive partner . If we can’t how much can we own .

  21. 7/18/2011 | 11:03 am Permalink

    @Adg
    Individuals with any visa status can own part or all of a C corporation – the problem arises if a shareholder without an appropriate work visa tries to work for the corporation.

  22. 10/16/2011 | 8:09 pm Permalink

    Hello Dana,
    Can you please tell me, I have a f-1 visa, and I study in US now. Can I create a company in US? Can I work for my company? What kind of company is better? Actually, I wanna sell fried chicken on campus after school. But my school told me, I need create a company.

  23. 10/21/2011 | 2:58 pm Permalink

    @Shin Fu
    You can form a company, but you cannot work for it (unless you have CPT or OPT). The appropriate type of entity is a decision that requires more information, time and analysis than can be provided in a blog comment.

  24. 11/3/2011 | 3:34 pm Permalink

    @Dana
    Hi Dana,
    thanks for all your replies and your post, its really interesting to read and helps a lot!
    I am pretty much in the same situation that Seraca described:
    I want to found with an US citizen. It is not a branch of any company. And I cannot invest a 5 or more digit amount of dollars.
    I am a German citizen, with considerable work experience.
    Our company is not founded yet.
    So the following questions:
    -> Does it has any bad influence of me attaining a visa to found as an LLC?
    -> Should I still go for the H1B? What is the best way and how are my chances?
    We are considering every opportunity. I can be confounder, or work as employee or volunteer. What should we do?
    Thanks!!

  25. 11/4/2011 | 10:28 am Permalink

    @Bastian
    You should discuss your situation with an immigration lawyer who specializes in work visas (please see this blog’s Foreign Countries page).

  26. 5/9/2012 | 8:58 am Permalink

    Thanks for the excellent post.

    I wondered if you could clarify around starting a business with an American co-founder.

    Is it possible to create the company with an american co-founder (still retaining over 50% of the company) and that company hire me as a skilled worker? I have a Masters degree in Mathematics from a top non-US university and the startup is mathematically orientated.

    Thanks in advance.
    Dave

  27. 10/12/2012 | 1:37 pm Permalink

    Hello Dana, I came here on B1 visa and stayed, I am applying for asylum and received a letter from CIS that they are looking at my application and until the decision is made I can legally reside in US (California). I would like to register a carpet cleaning company, is it going to be possible?
    Thanks so much in advance

    • 10/13/2012 | 1:59 pm Permalink

      You may form the new business, but you may not work for it without a Work Authorization Card. (Sorry, but I’m not an immigration lawyer, so I cannot provide additional details.)

  28. 10/19/2012 | 12:41 pm Permalink

    @Dana
    Some very helpful information on your site, thank you. What if the work is physically done outside of the US? I am a Canadian looking to start a business offering online education with two US citizens and (my portion of) the work would primarily be completed from Canada.

    • 10/19/2012 | 3:44 pm Permalink

      US work visa issues do not apply to work done outside the US.

  29. 8/17/2013 | 2:34 am Permalink

    Hi I have a little question. I’m french but have an americain friend t startup in the US, can I do it with an american partner (even 51% vs 49% ownership?) and could also integrate an accelerator or incubator for startup help the thing?
    I heard I have to commit at least 20k personally and 100k or so for the company. even if my partner is american?
    thanks a lot !

    • 8/17/2013 | 10:00 pm Permalink

      Oli, you have quite specific requirements, thus you need to contact an immigration lawyer to obtain an answer to your questions.

      • 8/18/2013 | 1:51 am Permalink

        Sure. Do you recommend some?

        • 8/18/2013 | 8:56 am Permalink

          Please see the Visa / Immigration Matters portion of this blog’s Foreign Countries page.

  30. 8/19/2013 | 3:57 am Permalink

    Hi Dana ,
    what happens if a person has a lot of money to invest,
    but this money is in a us bank account, and the person has overstayed for two years?
    is there a way to become legal WITHOUT leaving the country? and without getting married.

    • 8/19/2013 | 5:29 am Permalink

      Leon, you have quite specific requirements, thus you need to contact an immigration lawyer to obtain an answer to your questions

      • 8/19/2013 | 5:32 am Permalink

        ok, :) Thank you.

  31. 10/25/2013 | 7:34 pm Permalink

    Hi Dana
    I already started an LLC and i am the CEO and currently hold a 50% of the company. I currently doing a PHD under an F1 visa. I can make a CPT/OPT in my company since is in my field of studies?

    • 10/25/2013 | 8:15 pm Permalink

      I’m afraid that your question is outside my areas of expertise. You should ask an immigration lawyer and someone at your school.

      • 10/28/2013 | 12:55 pm Permalink

        Any way, very informative blog.

        Kind regards

        Santiago

  32. 10/25/2013 | 11:52 pm Permalink

    Hi Dana,

    Thank you for this very useful post.
    As a foreign student currently on F-1 visa in the US, am I allowed to purchase common stocks in a private C corporation?

    Thank you

    • 10/26/2013 | 7:37 am Permalink

      Foreign citizens, irrespective of visa status, may hold shares of US corporations.

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