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Question on Starting a Company with H1 or E2 Visa Status

by Qingqing Miao, published: 2013-04-23 15:14 viewed: 510 times
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Question from Ray:

My friend & I are on b1/b2 status, we were planning to set up a restaurant business in the US, my understanding is that we can set up a company even we're not a permanent resident.

My questions are:

Is there any possibilities for us to apply for any kind of visa and change our status from b1/b2 to H1 or E2 or any type of visa so we can stay longer inside the US to guide our company?

Since my parents & sisters are having a green card in the US, would it be possible also if I will register the business under their name, and then later on apply for h1 visa? is there any complications if the owner of the company is my parents and then they're hiring me (son) as h1 visa?

Answer:

If you are thinking about opening and operating a restaurant, generally speaking, E-2 visa is probably the much preferred option assuming that your investment could meet all the requirements. Are you from one of the treaty countries? E-2 option is not available to citizens of quite a few countries.

In general, it will not be easy for a start-up restaurant to petition for an H-1B because it may be difficult to pursuant the CIS adjudicator that a restaurant position meets all the requirements of a specialty occupation. It is doable but a careful evaluation of the restaurant's business plan and your professional and educational background is definitely needed. The fact that the restaurant owners are your parents and sister normally would not kill your case nor will it create too big an issue. Nevertheless, it will raise the concern as to whether you are truly an employee (i.e. whether you can be fired and controlled by your employer). A more detailed discussion about your business plan is necessary for me to assess this particular point with more certainty.

It is certainly possible to change your status from b1/b2 to other status but when you file for COS it should be proceeded with caution to avoid the issue of "preconceived intent." COS to H-1b will be much trickier because of the complication created by its annual numerical cap. An attorney can certainly help you through this process and suggest a course of action that fits your particular needs.

I would recommend that you set up a legal consultation so that your questions can be answered fully.

The information above is general in nature and does not constitute legal advice.

Answer provided by:
Qingqing Miao
Ellis, Li & McKinstry PLLC
Comments (6)
1. Ray 2013-02-03 22:17
Hi Qingqing Miao,

Wow, thanks for the info. it really helps me a lot.
Anyways, I maybe would like to proceed to seek an advice regarding E2 visa.
yes. I am from treaty country, and I have read also that there is no numerical cap in Guam, (where I wan to set up my business, is this true? Does your legal consultation will cover Guam (though its not a mainland US?, Can we apply for E2 visa first before setting up a restaurant in Guam?
Do you also provide services on how to process E2 visa and making business plan?

I am really looking forward to answer my questions.

Thanks,

Ray
2. Qingqing Miao 2013-02-04 10:17
Hi Ray,

The annual numerical cap only applies to H-1B and if you will only work in Guam, you will not be subject to the cap according the the CNRA (Consolidated Natural Resources Act of 2008). This exemption rule, however, is going to expire on December 31, 2014.

If you would like to apply for E-2 status, then you do not have to worry about the numerical cap issue at all. The statutory requirements for an E-2 visa will be the same if your company is in Guam. Before you can apply for your E-2 visa, you will need to register your company and make the required investment first.

I will be more than happy to assist you with your visa application. We can also draft the business plan for you if you choose so. There are also E-2 business plan writers who can draft E-2 business plans for you.

Please feel free to contact me directly if you would like to discuss your issues further. Thank you.

Answer provided by:
Qingqing Miao
Ellis, Li & McKinstry PLLC
3. AIDAN 2013-02-07 21:48
Hi there

My name is Aidan and I have been in the U.S for a month now.I have enterd the us through a b1/b2 and someone offered to help me startup a hot dog business what do I need to do to change my visa to say H-1B and what are my options or do I have any.
please help.
4. Qingqing Miao 2013-02-08 12:02
Hi Aidan,

Please see my answer here.
5. Krishna 2013-04-21 20:51
Hi..

My name is Krishna and I'm on H1B. I would like to start a restaurant on my own. Is that possible? Please suggest me the possible ways. Thanks in advance!!
6. JC 2013-04-23 15:14
@Krishna,
I am not a lawyer but as much as I have learned about this topic, here are some thoughts.

First, you can NOT work in your restaurant business. My understanding is that you can be an owner of the business by registering say, an LLC under your name.

You'd better hire somebody else for the day to day operation. Good luck.
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