Entrepreneurs being entrepreneurs, they rarely like having a boss. However, only some of the employment-based visa categories allow for self-employment.
Visas That Allow Self-Employment
Several visa categories allow for self-employment. This means that the ownership percentage in the company is irrelevant and it does not matter whether the entrepreneur is supervised by anyone else at the company.
O-1 visas can be used for self-employment if you can demonstrate extraordinary ability. The O-1 allows the entrepreneur to either work as a contractor (through an agent) or as an employee of a company that the entrepreneur owns.
Similarly, E-2 visas can be used even when the entrepreneur owns 100% of the sponsoring company. The sponsoring E-2 company can have contractual relationships with other companies. Therefore entrepreneurs in this situation can serve as contractors to other companies as long as the sponsoring company is paid rather than the entrepreneur directly.
The L-1 visa is not a traditional visa for self-employment, but if the entrepreneur owns the company and can meet the corporate ownership and management requirements, that person can secure a visa to work in the US for his/her own company. However, to pursue an extension the company must create additional jobs in the US.
Last, students in F-1 status can work for their own companies in the first year of OPT.
Visas That are Unclear about Self-Employment
Unlike the first year of OPT, the second and third years through a STEM extension create challenges for self-employment situations. To get a STEM extension, individuals must file Form I-983 with their schools. In that form the individual must state the training he/she will receive and the supervision he/she will receive. In this situation we recommend that entrepreneurs set up a company board that can perform these supervision and training functions.
The H-1B1 visa for Chileans and Singaporeans and the E-3 visa for Australians mimic the H-1B visa, but it is unclear how entrepreneurs can utilize these visa categories. We have successfully filed for entrepreneurs in the E-3 category.
Visas that do NOT Allow Self-Employment
The H-1B and TN visa categories do not allow self-employment. For each of these categories an employer-employee relationship must be established. Fundamentally, this means you must work for a company that has the ability to fire you.
Importantly, B-1 visas generally do not allow work in the US, so they cannot be considered visas that allow self-employment.
Of course, once an individual has a green card that person can work for whoever he or she wants. This article also does not cover dependent visas which may provide for work authorization.
To speak with an entrepreneur immigration attorney about your situation, please schedule a call.