Getting a Visa When You Start a Business in the U.S.

Many foreign entrepreneurs, particularly those who start their ventures while studying here in the U.S., want to know if and how they’ll be able to stay in the U.S. to build their businesses. Although an entrepreneur visa will hopefully be coming to fruition soon, and though investor visa categories already exist, their requirements can be very onerous for startup founders — requiring third party capital investment or personal investment of six or seven figures. Foreign entrepreneurs may also wonder about the possibility of utilizing a H-1B visa — the “standard” work visa. The H-1B visa, while only open to workers in speciality occupations with a bachelor’s degree or higher, allows the visa holder to remain in the U.S. for up to 6 years while employed in a qualified position (and allows the visa holder to remain in the U.S. for a limited period of time to seek new qualifying work). A H-1B visa, while technically a non-immigrant visa, is considered dual purpose, as holders may pursue permanent residency. While obtaining a H-1B visa is (relatively) straightforward for the traditional employer/employee relationship, it gets a little more murky when the prospective visa holder is an founder/owner of the company. Customs and Immigration Services has recently attempted to clarify the situation, requiring that the company sponsoring the visa demonstrate that it is distinct from the visa holder, creating an employer-employee relationship that the company, not the visa holder, controls. The nature and scope of the relationship must be documented in the visa petition, and must establish that the company has the right to supervise, direct, and review the owner/founder visa holder’s work, and even terminate the employment of the owner/founder. It is unclear if CIS considers employment distinct from ownership, meaning that the company need only have the power to terminate the foreign owner/founder’s day-to-day responsibilities while leaving the management rights that come with ownership intact, or if the company must have the power to completely sever its relationship, including recovering/reclaiming the foreign founder/owner’s equity stake in the company. In any event, a non-citizen/resident startup founder should work with an immigration attorney experienced in obtaining visas or residency for foreign entrepreneurs.

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