Seven Pathways for Starting a Business in the U.S. on a Nonimmigrant Status and Their Requirements
The article outlines seven lawful paths for foreign nationals in nonimmigrant status to start a business in the United States: international entrepreneur parole, the B-1 business visa, the E-2 investor visa, F-1 OPT, H-1B, L-1A, and O-1. It explains the eligibility conditions, periods of stay, and extension rules for each, and sets out the policy background of the international entrepreneur parole rule from its introduction in 2017 to its restart in 2022.
The immigration agency today released guidance on "International Entrepreneur Parole." The policy dates back to January 2017, when the Obama Department of Homeland Security issued the International Entrepreneur Rule, allowing foreign entrepreneurs to enter the U.S. in parole status to start businesses. However, the program was put on hold after Trump took office and was not restarted until 2022 under Biden.
Taking this opportunity, this article introduces the seven lawful paths and their respective requirements for foreign nationals in nonimmigrant status who currently wish to come to the U.S. or start a business in the U.S.:
1. IER Parole Status: namely the International Entrepreneur Rule mentioned above
The applicant must have a legally operating business in the U.S.; the business must have been formed within five years before the initial IER application and must have substantial potential for rapid growth and job creation in the U.S.; the applicant must play a central role in the business's operations; and the applicant must own at least 10% of the business at the initial parole application (or at least 5% at renewal). Initial parole is for up to 30 months, with one possible extension of up to 30 months, for a total of up to 60 months, or five years.
2. B-1: Temporary Business Visa
If you have not yet established a U.S. business, you may enter the U.S. on a B-1 temporary business visa to engage in certain preparatory activities, such as fundraising, finding office space, negotiating, and attending certain business meetings related to starting a new business. However, B-1 status does not allow you to work for or participate in the operations of an established U.S. company, including a newly formed one. Initial B-1 stay is at least one month and up to six months, extendable by up to six months; the maximum stay on a single B-1 entry is one year.
If you are unsure what B-1 status permits and what it does not, consult an immigration attorney. Years ago, while working at a foreign company in Beijing, the author of this article visited the U.S. headquarters for training on a B-1 visa; the company's attorney explicitly stated that the author could observe and learn but could not perform any "productive" work.
3. E-2: Investors from Treaty Countries
Limited to countries or regions eligible for E-2 treaty treatment, including Taiwan, China; mainland China, Hong Kong, and Macau are not included. The investor must have 50% ownership or operational control of the enterprise, and the enterprise's current or future income must be sufficient to support the investor and family at the minimum living standard for 5 years. E-2 status is initially approved for up to 2 years, and may be extended for up to 2 years at a time thereafter, with no limit on the total number of extensions.
4. F-1 OPT Status: Optional Practical Training
F-1 students may start a business (see the notes in our article). However, to qualify for the STEM OPT extension, the startup entity must be an E-Verify-enrolled compliant employer, sign a training plan, and have the resources to comply with the proposed training plan. The applicant must work directly in a field related to their major. Up to 12 months of OPT plus 24 months of STEM OPT extension (36 months total) are available.
5. H-1B Status
An H-1B petition must be filed by an employer; the applicant may have ownership in the company. The position must require at least a bachelor's degree and corresponding specialized knowledge. Initial approval is for up to three years, with extensions of up to three years, for a total of six years; however, if the applicant has filed an I-485 green card application (H-1B allows immigrant intent), H-1B extensions can continue indefinitely while the application is pending. Initial H-1B applications are subject to the lottery, while extensions are not subject to the cap and do not require a new lottery.
6. L-1A: Foreign Company Sends Managerial Personnel to Open a New U.S. Office
The U.S. entity must be affiliated with the Chinese employer. The new office must have sufficient physical premises at the time of filing and must begin doing business in the U.S. within one year. The applicant must hold a managerial position, and the new office must be sufficient to support that managerial position within one year. Initial L-1A status is granted for one year, with a two-year extension available upon expiration, and up to three extensions, for a total stay of up to seven years. Like H-1B, L-1A is a dual intent status, allowing immigrant intent; and because its "executive or manager" nature is similar to EB-1C requirements, it is relatively easy to pursue EB-1C immigration.
7. O-1: Individuals with Extraordinary Ability
An O-1 petition must be filed by a U.S. employer or U.S. agent. Although the applicant files the petition, a company owned by the applicant may file on their behalf. The applicant must demonstrate "extraordinary ability" in a field and work in that field. Initial approval is for up to three years, followed by one-year extensions, which are unlimited in number.
