Can You Do Business In the USA on Your Current Visa?
Hello, everyone. This is Rajiv S. Khanna for the Law Offices of Rajiv S. Khanna, P.C, immigration.com.
You can post comments and questions on immigration.com. I usually respond within three or four days, sometimes a week. I’m going to answer one of the questions someone asked us on immigration.com.
Can I start a business on an H-1 visa?
The bottom line is yes, as long as you are in a situation where, even though you are working for your own company, somebody in the company can file. It must be a true employer/employee relationship. How does that work? What if you have a board of directors or if you have a CEO to whom you report, even though you are a stockholder or maybe even you even have majority of stock in the company, but somebody in the company can file, you’re okay. USCIS has indicated that is their present stance. You must have an employer/employee relationship if you want to be able to start your own business on H-1.
In addition to that, remember H-1 is for a specific employer. So if you want to have a concurrent employment with your own company or you want to change companies and go over full time to your own company, you can do that, but you have to process a H-1, either a concurrent H-1 or a successive H-1. One of the things you need to remember is, if you own majority stock in the company, or if you have influence over the management of the company, it will be very difficult if not impossible for you to do a Green Card through PERM through your own company.
Where does that leave us? There’s a whole history behind this H-1. I won’t go through the history. USCIS has gone up and down. “You can do it.” “You cannot do it.” There is a whole history behind this. But the bottom line today is, you can do it, but it definitely requires some in-depth consulting with a lawyer. Make sure you are not getting into a situation which is going to hurt your stance.
Here is another question I get asked.
I have an EAD through 485. Can I now start my business?
Sure. On the side, you can, as long as you don’t leave your current job. But, remember, you will then no longer be on H-1. You will be on EAD if you start working for your own company.
I actually have a whole list of visas.
Can I do business on E-2?
Yes, of course. E-2 visas, which are treaty investor visas, are meant to do business. E-1, treaty trader, the same thing. But only a few countries in the world have a treaty with the United States to do E-1/E-2 visas, so you have to make sure that the country you come from has that.
If I’m here on a tourist visa or a B-1, which is called a business visa, can I do business?
The answer is, you can negotiate contracts, you can shake hands, and you can even set up a company, but, if you actively participate in business, you are violating the terms of B visa. B-1, which is the business visa, is a misnomer. You start thinking, I have business visa; maybe I can start a business. But you can’t do it on B-1.
Can I start a business on F-1 visa?
Of course not. You are a student.
What if I am on my optional practical training and I have my F-1 EAD?
Maybe, but only for the time you have the EAD. Again, that is something to be explored. Don’t just jump into it. Make sure you understand the ramifications of what you’re doing.
What about on a G visa?
On G-4, of course, the primary applicant of G-4 is engaged in working for a multinational organization such as the World Bank or the IMF. They cannot do business, but what about their dependents? I haven’t looked into it specifically. I suspect that they can, because they do get an EAD and that EAD is not confined to a specific purpose, but I would have to check on that. I’m just speaking off the top of my head. I was primarily answering the H-1 question, but I want to share with you what I know. So, G-4, probably yes.
H-4? Absolutely not.
H-1? As long as you can be fired.
I visa? No.
J-2 visa? Yes, as long as you have an EAD.
K visa? K visas are all work authorized, so, yes, you can do business.
L-1? No, because you’re working for a company.
L-2? Yes, because you get an EAD.
M Visa? No.
I went through the whole gamut, just to give you a rough idea; more so, to sensitize you to who can and who cannot do business.
8 CFR Sec. 214.2(i) Representatives of information media
The admission of an alien of the class defined in section 101(a)(15)(I) of the Act constitutes an agreement by the alien not to change the information medium or his or her employer until he or she obtains permission to do so from the district director having jurisdiction over his or her residence. An alien classified as an information media nonimmigrant (I) may be authorized admission for the duration of employment.
The "media (I)" visa is a nonimmigrant temporary visa for people who are representatives of the foreign media traveling to the United States. Such members of the foreign media must be engaging in their profession and the foreign media must have their home office in a foreign country. Please note in considering whether to grant media visas to foreign media representatives of a particular country, the U.S. considers whether the visa applicants own government grants similar privileges or is “reciprocal” to representatives of the media/or press from the United States.
Qualifying for a Media (I) Visa
The Immigration and Nationality Act (INA) is very specific with regard to the requirements, which must be met by applicants to qualify for the media (I) visa. Applicants must demonstrate that they are properly qualified for a media visa. Under immigration law, media visas are for “representatives of the foreign media,” including members of the press, radio, film or print industries, whose activities are essential to the foreign media function, such as reporters, film crews, editors and persons in similar occupations, traveling to the U.S. to engage in their profession. The applicant must be engaging in qualifying activities for a media organization having its home office in a foreign country. The consular officer will determine whether or not an activity qualifies for the media visa. The activity must be essentially informational, and generally associated with the news gathering process, reporting on actual current events, to be eligible for the media visa. For example, reporting on sports events are usually appropriate for the media visa. Other examples include, but are not limited to, the following media related kinds of activities:
Primary employees of foreign information media engaged in filming a news event or documentary.
Members of the media engaged in the production or distribution of film will only qualify for a media visa if the material being filmed will be used to disseminate information or news. Additionally, the primary source and distribution of funding must be outside the United States
Journalists working under contract- Persons holding a credential issued by a professional journalistic organization, if working under contract on a product to be used abroad by an information or cultural medium to disseminate information or news not primarily intended for commercial entertainment or advertising. Please note that a valid employment contract is required.
Employees of independent production companies when those employees hold a credential issued by a professional journalistic association.
Foreign journalists working for an overseas branch office or subsidiary of a U.S. network, newspaper or other media outlet if the journalist is going to the United States to report on U.S. events solely for a foreign audience.
Accredited representatives of tourist bureaus, controlled, operated, or subsidized in whole or in part by a foreign government, who engage primarily in disseminating factual tourist information about that country, and who are not entitled to A-2 visa classification.
Technical industrial information- Employees in the United States offices of organizations, which distribute technical industrial information.
Spouses and Children
Spouses and/or children under the age of 21 who wish to accompany or join the principal media visa holder in the United States for the duration of his/her stay require media visas (derivative I visas). The application procedure is the same as for a primary media visa applicant. The spouse and/or children of a media visa holder here in the U.S. may not work. The spouse and/or children of a media visa holder who are in the U.S. on a media visa may study in the U.S. without also being required to apply for a student (F-1) visa.
Applying for a Media Visa - Required Documentation
As part of the visa application process, an interview at the embassy consular section is required for visa applicants from age 14 through 79. Persons age 13 and younger, and age 80 and older, generally do not require an interview, unless requested by embassy or consulate. Making your appointment for an interview is the first step in the visa application process. Visa wait times for interview appointments and visa processing time information for each U.S. Embassy or Consulate worldwide is available at Visa Wait Times, and on most embassy websites. During the visa application process, usually at the interview, a ink-free, digital fingerprint scan will be quickly taken. Some visa applications require further administrative processing, which takes additional time after the visa applicant's interview by a Consular Officer. Each applicant for a media visa must submit these forms and documentation, and submit fees as explained below:
A Supplemental Nonimmigrant Visa Application, Form DS-157 provides additional information about your travel plans. Submission of this completed form is required for all male applicants between 16-45 years of age. It is also required for all applicants from state sponsors of terrorism age 16 and over, irrespective of gender, without exception. Four countries are now designated as state sponsors of terrorism, including Cuba, Syria, Sudan, and Iran. Select Special Processing Procedures to learn more. You should know that a consular officer may require any nonimmigrant visa applicant to complete this form. Here is Form DS-157
A passport valid for travel to the United States and with a validity date at least six months beyond the applicant's intended period of stay in the United States (unless country-specific agreements provide exemptions). If more than one person is included in the passport, each person desiring a visa must make an application;
Staff Journalist: A letter from the employer that gives the employees name, position held within the company, and purpose and length of stay in the United States.
Freelance Journalist under contract to a media organization: A copy of the contract with the organization, which shows the employees name, position held within the company; purpose and length of stay in the United States and duration of contract.
Media Film Crew: a letter from the employer which gives the following information: name; position held within company; title and brief description of the program being filmed and period of time required for filming in the United States.
Independent Production Company under contract to media organization: a letter from the organization commissioning the work which gives the following information: name; title and brief description of the program being filmed; period of time required for filming in the United States and duration of contract.
Working Media Cannot Travel Without a Visa on the Visa Waiver Program
Please note citizens from a country participating in the Visa Waiver Program (VWP), who want to enter the United States temporarily, as representatives of the foreign media traveling to the United States, engaging in their profession, as media or journalists, must first obtain a media visa to come to the U.S. They cannot travel without a visa on the Visa Waiver Program. Those who attempt to do travel without a visa, on the Visa Waiver Program may be denied admission to the United States by the Department of Homeland Security, U.S. immigration inspector at the port of entry. For more information on VWP, see Visa Waiver Program
Note: It is important that you refer to the Embassy Consular Section website in the traveler's country of residence to determine visa processing timeframes and instructions, learn about interview scheduling, and find out if there are any additional documentation items required. Learn more by contacting the Embassy Consular Section