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H1B Visa Holder As Passive Owner of USA Company?

by Qingqing Miao, published: 2014-07-07 22:38 viewed: 39 times
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Question from Jillo,

I just got my H1B, before that I had a J1 for 3 years. I'm a teacher but I'm taking online courses to become a part-time wedding planner (I will continue to be a full-time teacher with my H1B).

I would like to open my own business in the US: I do understand that I will be just the owner. But I really want to participate, being involved. This is my dream work: I want to meet with clients, taking decisions about wedding organization, be present during the wedding...I know that I will not be paid for that, so:

1. Is this considered as a "passive work"?

2. Do I need to hire a CEO, or I can just have a secretary/assistant? It's going to be a small business; I don't have a lot to invest.

3. what title do I have in this business?

4. how can I earn money from my business?

Answer:

1. Doing client-intake and making decisions on the services performed are more likely than not to be considered as employment, although the law itself is not very clear and different attorneys may have different opinions on the same fact pattern. One perfect example of passive investment would be buying publicly traded stock. Stockholders own share of the company but in fact have very little to do with the management of the company. Another example could be a limited partner in an LLP who receives partnership distribution but are not really involved in the management of the company (although investing in a business entity as a limited partner could sometimes qualify as active investment under the immigration law for certain visa categories). For small business owners, in reality, it could be difficult for them to not be personally involved in their startups.

2. Depending on your nationality and how much you are thinking about investing into your company, you may want to explore the possibility of obtaining an E-2 visa. Please note that E-2 visa is not available for most Chinese citizens (except for China-Taiwan). H-1B could also be an option but given the nature of your business, it is probably going to be very difficult. If you are interested in exploring visa opportunities, I would recommend you send over your business plans and resume to an attorney for a preliminary evaluation.

3. Your officer title (i.e. president, treasurer, secretary) itself is not super important for the purpose of immigration law compliance. What matters is how (or whether) you are compensated and how you are actually involved in the business. If you are going to apply for a visa based on your company, then your attorney will assist you in selecting an appropriate job title (which may or may not be the same as your officer title).

The above answer is for information only and does not constitute legal advice.

Answer provided by:
Qingqing Miao
Ellis, Li & McKinstry PLLC
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