The H-1B visa, often associated with traditional employment in established companies, is surprisingly flexible when it comes to entrepreneurship. Many believe it confines visa holders to a 9-to-5 job, hindering their ability to pursue their own business ventures. However, recent clarifications from the Department of Homeland Security (DHS) have confirmed that you CAN indeed obtain an H-1B through your own company as a founder, even with 100% equity. This opens exciting possibilities for foreign entrepreneurs looking to build their businesses in the United States.
Breaking the Myth: H-1B and Entrepreneurship
The common misconception is that the H-1B visa is incompatible with entrepreneurial pursuits. This is simply not true. You can build your own company while on an H-1B visa. The DHS has reinforced this with a recent final rule, solidifying the pathway for foreign entrepreneurs to establish and grow their businesses in the US.
Advantages of Using the H-1B as a Founder
Choosing the H-1B route for your entrepreneurial journey offers several distinct advantages:
- No “Extraordinary Ability” Requirement: Unlike the O-1 visa, which requires demonstrating extraordinary ability in your field, the H-1B has more accessible eligibility criteria.
- 100% Equity Ownership: You can own up to 100% of your company’s equity, giving you complete control over your business.
- H-4 EAD for Spouse: If your I-140 (Immigrant Petition for Alien Worker) is approved, your spouse may be eligible for work authorization through the H-4 EAD (Employment Authorization Document).
Eligibility Requirements for Filing
To successfully file for an H-1B through your own company, you must meet specific requirements:
- Legitimate Business: Your company must be a genuine business entity with a well-defined 3-year roadmap, a comprehensive business plan, and a legal presence in the United States. This includes proper incorporation and registration.
- Prevailing Wage: You must be paid a salary that meets or exceeds the prevailing wage for your role and location. This ensures that you are not undercutting the US labor market.
- Degree Relevance: Your role within the company must be directly related to your educational background and field of expertise.
Associated Costs
Starting the process involves several costs:
- Incorporation: Approximately $500.
- H-1B Filing: Roughly $2,000.
- Premium Processing (Optional): Around $2,500 for expedited processing.
- Legal Fees: Lawyer fees can range from $1,500 to $8,000, depending on the complexity of the case and the attorney’s experience.
Key Considerations and Potential Challenges
While the H-1B offers a viable path for founders, there are important considerations:
- H-1B Lottery: You are still subject to the annual H-1B lottery. This means that even if you meet all the requirements, your petition might not be selected.
- Demonstrating Ability to Pay: You must demonstrate your company’s ability to pay your salary for at least three years. This can be achieved through various means, including funding, revenue projections, and existing contracts. Part-time employment can mitigate the financial burden on your company.
- “Fireability”: As an employee of your own company, you technically need to be “fireable.” This is often addressed by establishing a board of directors or other governing structure that has the authority to terminate your employment if necessary. This satisfies the employer-employee relationship requirement of the H-1B visa.
Important Note: The information provided here is for general knowledge and informational purposes only, and does not constitute legal advice. It is crucial to consult with an experienced immigration attorney to discuss your specific situation and ensure compliance with all applicable laws and regulations.
Looking to Incorporate Your Business in the USA?
Navigating the complexities of incorporation and the H-1B process can be challenging. If you are a foreign entrepreneur looking to establish your business in the United States and explore the H-1B visa option, we can help. Contact us today for a consultation to discuss your specific needs and how we can assist you with the incorporation process.
