Can I invest and run my own business while I have H1B visa? Can I switch to another visa to do so?

Attorney answers (1)

1. 

   Vivek Goel

   Herndon Immigration Attorney

   Contributor Level 6

   1

   Lawyer agrees

   Answered March 18, 2010 20:59. It might be possible if your business is able to get an approved H-1B petition on your behalf for the job that you will be doing.
   
   In practice, H-1B "self employment" by entrepreneurs used to be relatively common, but under the guidance issued by USCIS on January 8, 2010 (referred to as the Neufeld Memo on H-1B Employer-Employee Relationship), this type of case has come under increased scrutiny. Today, where the H-1B beneficiary is the majority owner or otherwise directs and controls the business' activities, getting such a case approved has become rather unlikely. The reason is that USCIS is requiring the employers in these cases to demonstrate that there is a valid employer-employee relationship between it and the H-1B beneficiary. A valid employer-employee relationship is one where the employer has the "right to control" the employee's work assignments. In situations where the H-1B beneficiary does not report to anyone else within the company, USCIS is taking the position that the requisite "right to control" does not exist, and it denies the case on this basis.
   
   While there may be other visa classifications that might be more suitable for some form of "self employment," you have not provided sufficient information to allow a thoughtful answer. That said, the L-1, E-1, E-2, O-1, and even TN classifications may offer viable options depending on your individual circumstances. I'd recommend discussing your options with a reputable immigration attorney. Good luck!

   • Mark as helpful
   • Flag