With the increasing interest in the pending Parole for International Entrepreneurs Rule, entrepreneurs from other countries are unaware that even before this rule, there were many ways to start your own business and stay in the U.S. Here are some of the methods to allow those that are here on temporary visas, student visas, or other work visas to do just that:
1. OPT Allows for Self-Employment. There are no rules preventing someone pursuing OPT to also pursue self-employment. As long as the business is in the same field of study as the program which the student pursued through his F-1 visa, he would be able to work for himself. Beware of the line between what you are allowed to do while you are completing your program on F-1 and what you are allowed to do while on OPT. You cannot work while on F-1, however, you would be "working" through your OPT. As such, the question becomes whether setting up your own business would be considered "working," therefore violating the terms of your F-1 visa.
2. H-1B Petitions Require Employer-Employee Relationship, But Does Not Prevent Self-Employment. You may start a business and in turn sponsor yourself for the H-1B status. The difficult hurtle is that you will need to show that you are an employee of the company that you have started. This means that you must vest the control of your own company in a Board of Directors or, through the governing documents, show that you do not have majority ownership. Through the latter method, USCIS must understand that although you started the business, other owners comprise of the majority, have decision-making power, and have the ability to fire you or take the company from you.
You may also apply cap-exempt if you can show that your business works "directly" and "predominantly" with a non-profit organization or an university or is employed by a non-profit organization or an university. Alternatively, over the course of a couple of months, Global Entrepreneur In Residence programs have became the norm in universities all over the country. Here are some of examples of the success of this program: Babson College GEIR, UMass's Venture Development Center, and Harvard Business School's Rock Center. Entrepreneurs working with these programs are also able to start their business and apply for H-1B cap-exempt.
3. E-2 Treaty Investor Visa – If you are a citizen of one of the treaty countries, you may use this visa to enter or stay in the U.S. to start a business. This visa functions similar to the popular EB-5 except with far less regulations and less scrutiny around it. One major advantage of the E-2 visa is that it costs much less than the EB-5, there is no minimum capital investment amount required to qualify. The investor would only need as much capital as is required to start whatever business he wants.
4. Self-Petition For EB-2 (Exceptional Ability) with National Interest Waiver. If you qualify for the National Interest Waiver (NIW) under the Employment-Based Second Category, you would not need an employer to petition for you. According to Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Comm’r 1998), a petition seeking NIW must show that (1) you plan on working in the U.S. in an area of substantial intrinsic merit, (2) the proposed impact of your work is national in scope, and (3) waiving the labor certification requirement would benefit the national interest.
5. Of course, the New Parole for International Entrepreneurs Rule. Our firm is keeping a close eye on this rule and will provide an update to our readers as soon the public comments period is complete. We will also be updating our practice areas to include this rule at that point. Read the reasons why we are so excited here: Five Reasons We Are Excited For The New Parole For International Entrepreneurs Rule.
Our law firm regularly advises clients on the issues mentioned above. Contact us today to see how we can help bring your ideas to reality and obtain legal permanent residence.