In Visa Basics for Foreign Entrepreneurs Coming to the U.S., I discussed certain immigration statuses (visa waiver, B-1 and H-1B visas) that permit a non-resident alien to take a passive role in a business (such as forming it) but not to work for it. This post discusses the boundary between permissible passive activities and prohibited work.
Let’s assume that the new business is formed as a corporation. Being a shareholder certainly is a passive activity. Being a director (board member) typically should be a passive activity, too, because directors’ role is one of oversight and approval (elect officers, approve major transactions, etc.), rather than running the business.
Being an officer is not permitted, however. Officers are directly responsible for running the business, thus they inherently are actively involved in working for it.
Summary if you are a non-resident alien who must keep his or her activities for a business passive: It’s OK to be a shareholder and a director, but don’t become an officer, employee or independent contractor of the business or do any additional work for it.
Related post: Can I Get an H-1B Visa Working for My Own Company?
Dana H. Shultz, Attorney at Law +1 510 547-0545 dana [at] danashultz [dot] com
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