Is your Visa stopping you from starting your own company. What you need to know…

Recently, there has been so much noise around immigration laws passed in support of H-4 spouses. Many foreign immigrants want to start their own company with their current visa. Here is some information that Madhuri Nemali, an immigration attorney from Cameo Law Group shared recently.
Existing options:
If you have begun the OPT portion of your student visa, then you can use the employment
authorization to start your own company, as long as you can prove that you have the proper
business licenses and that the company is directly related to your field of study. If you are using
your start-up to support your OPT STEM extension, then the additional requirements are that
you must work full-time for your company and register it with the E-Verify system.
If you already have an H-1B visa, it is possible for you to transfer it to the company you founded
and have your H-1B visa sponsored through your start-up, as long as you can demonstrate two
things. First, that the start-up has enough capital to pay both your salary as determined by the
minimum prevailing wage and the company’s other expenses. Second, that you are still working
as an employee under someone else’s authority, which is generally done either by having a board
of directors with the authority to hire and fire you, or coming in as a vice president instead of the
president of the company. Careful of having too much equity in the start-up, though, as it can
hurt your chances for the start-up sponsoring your green card down the line.
The L-1A visa is for managers and executives who have, for at least one of the last three years,
worked overseas for a company that has or will have a US affiliate. The foreign company could
work with a US partner to establish a US office, and then transfer the manager or executive
there. Alternatively, the foreign company could send the manager or executive to the US to
launch the new office themselves.
The EB1A green card is for those individuals with extraordinary abilities. In the tech field,
successful applicants are generally PhDs with a great deal of significant research and
development achievements. If you qualify for this category, you may sponsor yourself for a
green card without having to depend on an employer or a job offer.
The National Interest Waiver for the EB2 category says that people with advanced degrees in
science, the arts, or business whose past achievements show they will advance the national
interest in the areas of substantial intrinsic merit do not have to go through the labor certification
process and may sponsor themselves for a green card without having to depend on an employer
or a job offer. Unfortunately, the NIW isn’t a separate category of EB-2, and Indian nationals
still have to contend with priority date backlogs of 7+ years
The E-2 is a treaty visa that allows the citizens of a short list of countries to make a substantial
investment in an enterprise they will develop in the US. Unfortunately, India is not on the list of
countries that has signed this treaty with the US.
The EB-5 visa allows you to get a conditional green card for investing either $500,000 or $1
million in a US enterprise and creating ten American jobs by the end of two years, at which point
you can apply for a permanent green card.
Future options:
Executive Action:
President Obama’s executive actions on immigration announced in 2014 included two measures
to help entrepreneurs. The first is clarify the NIW standard to further help clarify for
entrepreneurs their eligibility for this category. The second is to design a program to allow
individuals to work in the US on a temporary basis when doing so would yield a significant
public benefit. Further details on these measures are expected later this year.
Startup Act Visa:
A Senate bill introduced in January would create up to 75,000 visas for foreign entrepreneurs and
offer a four-year process for them to become citizens if they make at least $100,000 in their first
year and employ at least five full-time employees after four years. Unfortunately, it has not yet
been brought to a vote.
On May 26th, 2015, H-4 visa holders whose spouses either have an approved I-140 or have
completed six years of H-1B status with a PERM or I-140 pending for at least a year will be
eligible to apply for employment authorization. With that employment authorization, H-4 visa
holders will have the option to start their own companies.

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