Self-Employment in the U.S. Immigration System

Someone who is self-employed is defined as someone who works for oneself as a freelancer (also known as an independent contractor) or the owner of a business rather than for an employer. There are multiple ways you can work for yourself in the United States as a nonimmigrant. To do so, you must first obtain a work visa. Although there are no specific self-employed visas, there are options for those who wish to be self-employed and work in the United States. 

International Entrepreneur Rule 

Under the International Entrepreneur Rule (“IER”), the Department of Homeland Security (“DHS”) may use its parole authority to grant a period of authorized stay, on a case-by-case basis, to noncitizen entrepreneurs who show that their stay in the United States would provide a significant public benefit through their business venture and that they merit a favorable exercise of discretion. Under the IER, entrepreneurs granted parole will be eligible to work only for their startup business.

Duration of Validity: Up to 30 months of initial parole with an ability to apply for one additional period (re-parole) of up to 30 months.

B-1 Visa: Temporary Business Visitor

The B-1 visa is a very limited option for those who want to work as a freelancer in the United States. A B-1 visa only allows foreign nationals to temporarily visit if they will be participating in business activities of a commercial or professional nature in the United States, including, but not limited to:

• Attending meetings with clients or business associates, including board meetings, annual staff meetings, etc.
• Taking (but not filling) orders/sales for goods manufactured in a foreign country.
• Purchasing goods or materials or placing orders in the U.S. for the foreign entity.
• Negotiating and signing contracts with U.S. entities on behalf of the foreign entity or enterprise.
• After Sales Services, including installing, servicing, or providing training for machinery or equipment manufactured and delivered from a foreign company pursuant to the terms of contract of sale (for up to one year after the sale).
• Attending or participating in training, conferences, conventions, trade shows.
• Exploring investment options and investing in the U.S.

A B-1 visitor may come to the United States in order to secure funding or office space, negotiate a contract, or attend certain business meetings in connection with opening a new business. However, a B-1 visitor is prohibited from working for or operating an already established U.S. entity. Similarly, a B-1 visitor may not begin operating or working for a new business in the United States. In addition, a B-1 visitor cannot be paid by a U.S. source for hands-on work in the United States. 

Duration of Validity: Up to six months (minimum of one month) for initial stay; up to six months for extension of stay; maximum total amount of time permitted in B-1 status on any one trip is one year.

E-2 Visa: Treaty Investors

The E-2 visa is a great visa option for foreign entrepreneurs that want to start or purchase a business in the United States and work for themselves. This visa typically requires that you open a business that employs U.S. permanent residents or U.S. citizens to help the U.S. economy. Essentially, any type of business can qualify for an E-2 visa, so long as it is a legitimate and lawful business that is an “active commercial enterprise.” This means that it actively offers tangible goods, products, or services. 

To qualify for E-2 status, the treaty investor (whether a business or individual) must be a national of a country with which the U.S. maintains a treaty of commerce and navigation; have invested or is actively in the process of investing a substantial amount of capital in a new or existing bona fide business in the U.S.; and be seeking to enter the U.S. solely to develop and direct the investment enterprise, a real, active commercial undertaking which produces services or goods for profit. Note that the investment enterprise may not be marginal. A marginal enterprise is one that does not have the present or future capacity to generate more than enough income to provide a minimal living for you or your family within five years. 

Duration of Validity: Up to two-year initial approval plus two-year extensions, with no maximum duration of status and no annual numerical limit. 

F-1 Visa: Optional Practical Training  

A student in F-1 student status may start a business. However, in order to qualify for a STEM Occupational Practical Training (“OPT”) extension, the start-up entity must be an employer in good standing with E-Verify, sign a training plan (F-1 students may not provide employer attestations), and have the resources to comply with the proposed training plan. In addition, the F-1 student must perform work directly related to his or her major area of study.

Duration of Validity: Up to 12 months for OPT (post-completion OPT will be reduced by any pre-completion OPT received) plus 24-month STEM OPT extension (36 months total).

H-1B Visa: Specialty Occupation

The H-1B visa allows a foreign national to have an ownership interest in the petitioning entity. However, generally the entity must file the petition as the foreign national’s employer. The foreign national’s position must require the theoretical and practical application of a body of highly specialized knowledge; and the attainment of a bachelor’s or higher degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation in the United States.

Duration of Validity: Three-year initial approval plus extensions for up to three additional years. Extensions beyond the six-year limit may be available for individuals who are in the process of obtaining lawful permanent resident status. Due to an annual statutory cap, there is typically a random selection process to determine which petitions are eligible to be filed for an initial H-1B period (unless exempt from the cap). H-1B extension petitions are not subject to the cap.

L-1A Visa: Intracompany Transferee (New Office)

The L-1A visa new office scenario is a good option for entrepreneurs who hold a managerial or executive position with a foreign employer and wish to open a new office in the United States. For foreign employers seeking to send an employee to the United States as an executive or manager to establish a new office, the employer must also show that:

• The employer has secured sufficient physical premises to house the new office;
• The employee has been employed as an executive or manager for one continuous year in the three years preceding the filing of the petition; and
• The intended U.S. office will support an executive or managerial position within one year of the approval of the petition.

The U.S. entity must have a qualifying relationship with the foreign employer. A new office must secure sufficient physical premises at the time of filing and be doing business in the United States within one year.

Duration of Validity: One-year initial approval for a new office plus two-year extensions up to a total of seven years.

O-1 Visa: Individuals with Extraordinary Ability or Achievement

The O-1 visa is an option for foreign nationals to be an independent contractor in the United States. The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements. The foreign national must work in his or her area of extraordinary ability. 

A U.S. employer, U.S. agent, or foreign employer through a U.S. agent must file the petition on behalf of the foreign national. While a foreign national may not self-petition, a separate legal entity owned by the foreign national may be eligible to file a petition on his or her behalf. The best option for workers who are traditionally self-employed or for workers who use agents to arrange short-term employment with numerous employers is to have an agent sponsor their petition.

 The contractual agreement between the foreign national and the agent must be submitted to U.S. Citizenship and Immigration Services (“USCIS”). The contractual agreement should indicate how the foreign national will be compensated and other terms and conditions of employment. Note that the immigration regulations do not require that an O-1 worker is a W-2 employee, so if the foreign national works for multiple companies throughout the year, this can be either a W-2 employment or as an independent contractor.

Duration of Validity: Up to three-year initial approval plus one-year extensions, with no maximum duration of status and no annual numerical limit.

If you have any questions about self-employment in the United States, contact our office today to set up a consultation with one of our attorneys!