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Legal Status in the United States through Self-Employment

Though it’s the general trend for foreign nationals to gain admission to the United States as sponsored employees, there are cases when they may be able to gain legal status in the country through self-employment.

Self employment refers to someone working for themselves. For example, a writer, an artist, a sole proprietor of a company, and even a person working for a company, where he or she is the only person in the company or a majority shareholder in a company. People who meet certain eligibility requirements may be able to sponsor themselves for either a nonimmigrant or an immigrant visa to the U.S.

Non-immigrant visas:

  • B-1 Visa - This is a temporary business visa. It allows the visa holder to stay in the U.S. for a predetermined period for business purposes on behalf of a foreign business, which may be a sole proprietorship. Whatever activities the visa holder undertakes, he/she should ensure that all income/profit should go to the foreign business/company.
  • H-1B Visa - If a person is a sole proprietor or a majority shareholder of a company, that company can sponsor the person’s H-1B visa. If it’s not a company, the proprietor m ay not be able to sponsor himself/herself. If it’s a partnership, the partner may be able to file the petition as the sponsor.
  • L Visa - A foreign national who owns a business can make use of this visa to be able to work in a managerial or executive position. He or she should also establish that they will be in this position only temporarily as they need to maintain the primary business abroad - the primary business being a prerequisite to getting an L visa.
  • O-1 Visa - A person cannot self-petition for this visa, but he/she may follow the same process as for the H-1B visa as mentioned above - be the owner of the sponsoring entity (the company) and be the beneficiary too.
  • TN Visa - A foreign national can get a TN visa if he/she is able to establish that the services rendered will be to a U.S. employer. This can be possible if the beneficiary of this visa is also the owner of the U.S. company. He/she can work as an independent contractor or a consultant.
  • E-1 Visa - If the foreign national belongs to a country that has a treaty with the U.S., then they can apply for an E-1 or E-2 visa, both of which allow for self-employment.

 Immigrant Visas0

Gaining permanent residence in the U.S. through self-employment maybe more difficult, if not impossible, than getting a nonimmigrant visa.

  • EB-1 - First Preference - A foreign national may self-petition for the Employment-Based First Preference (EB-1) visa as a person of extraordinary ability. The petitioner has to establish that they will continue to work in the area of extraordinary ability. In case there isn’t a current employment, they need to have a business plan and prove that they have the means to undertake a job that falls under the purview of their extraordinary ability.
  • National Interest Waiver - In case of a national interest waiver for a person seeking the Employment-Based Second Preference (EB-2) visa, they don’t need to have either a job offer or labor certification.  They need to be able to prove that it is in the national interest for their visa to be approved, because what they can contribute to the country is much greater than what a similarly qualified U.S. worker can. The applicants needs to prove that their contribution to the country will be thorough their own business.
  • EB-5 Visa - A foreign national may obtain permanent residence through the Employment-Based Fifth Preference (EB-5) visa. According to USCIS requirements, the beneficiary has to establish that he will:

- Make the necessary investment in a commercial enterprise in the United States; and
            - Plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers.

  • Portability - If a foreign national’s application for adjustment of status is pending for more than 180 days, he/she can change jobs as long as the new job is the same as or similar to their original job. This process, called portability, can be used by beneficiaries under certain EB-1 categories, EB-2 and EB-3 categories. The foreign national may be able to “port” into self-employment as long as the new job is the same as or similar to their original job for which a primary I-140 petition had been filed.



     

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Immigration law can be complicated and this article does not exhaust all the circumstances surrounding the process to obtain legal status in the United States. These issues can be extremely complex, and a single misstep could potentially lead to a rejection of your application or other immigration penalties, such as deportation. If you have any questions regarding this matter, please do not hesitate to contact our office.

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