Can a non-resident alien (with an H-1B visa) open a business in the USA?
I live in California. My wife is an artist (on an H-4 visa). I would
like to open a business to enable her to sell her artwork.

I will continue to work with the company that sponsors my H-1B but
want to know if I can set up this business as well.

Hi alieninusa,

The answer is no. H1-B Visa holders are specifically barred from self
employemnt, even in their free time.

REFERENCE:

Immihelp - H-visa (second paragraph from the bottom)
http://immihelp.com/visas/h1b/
H1 visa holder can buy house or any other real estate property in USA.
H1 visa holder can also work invest money in stocks, mutual funds,
bonds etc. H1 visa holder can not work as self-employed or freelancer
and do contract type of work in free time.


"Who can an H-1B alien work for?
http://www.ins.usdoj.gov/graphics/howdoi/h1b.htm
..."H-1B aliens may only work for the petitioning U.S. employer and
only in the H-1B activities described in the petition. The petitioning
U.S. employer may
place the H-1B worker on the worksite of another employer if all
applicable rules (e.g., Department of Labor rules) are followed. H-1B
aliens may work for
more than one U.S. employer, but must have a Form I-129 petition
approved by each employer..."


And in the St Petersburb Times:
http://www.sptimes.com/2004/07/25/Worldandnation/In_911_glare_hid_anot.shtml
..."After moving to Florida in 1992, Dekkers got a visa designed for
investors with "substantial" capital, even though he had a bankrupt
company in Holland. And for the past year, he has remained in the
United States on a coveted H-1B visa that is supposed to be issued
only to foreigners who have specialized skills and work exclusively
for a U.S. employer.

Dekkers would not say who he is working for or what he is doing. It is
not clear how he qualified for his current visa, since he also is
running his own plane-leasing company, despite regulations that
experts say bar H-1B visa holders from self-employment..."


Sorry the news is bad... if I can clarify, please let me know.


~~Cynthia


Search terms used at Google:
"H1B visa" "self employment"

I also found this in my Google search:

Subject: Work authorization to become a Google Researcher with an H1-B visa 
http://answers.google.com/answers/threadview?id=2687
(Google Answers Researchers are self-employed)

Greetings,
>This is only a free comment, and of course it is not legal or
professional advice, as you can read in the disclaimer below.

From this earlier G-A answer, it appears that you can, but the answer
is 3 1/2 years old and visa restrictions may have changed.
http://answers.google.com/answers/threadview?id=28283

These two lawyers' sites appear to agree, and mention the restrictions
on the H-1B holder's activity in the company.
The Immigration Service warns against trusting "immigration lawyers".
http://www.murthy.com/startup.html
http://www.usvisanews.com/faq/business.shtml

So, here are two US government sites that you can search or contact. 
I was unsuccessful with my search, but that doesn't mean that the
information is not there.  There is also the question of your wife's
"selling" her artwork, since H4 visa holders are not allowed to work. 
I don't know how this could apply to her giving artwork to the company
that will be sold.

http://uscis.gov/graphics/
http://www.usimmigrationsupport.org/startbusiness.html

Good luck, Myoarin

OH, Cynthia (hi!) posted her answer while I was writing my comment.

As I understand it, there is a distinction between starting and owning
a company and working for that company while continuing to work for
the sponsor for the H-1B visa (as discussed in the second lawyer's
site).

Perhaps Cynthia or someone else can add some information.

If it is possible for a H-1B visa holder to own a company (employing a
US citizen or Green Card holder), then the question about the wife's
producing the artworks to be sold should be clarified.

Myoarin

I'm confident my answer is correct. I found lots of dubious sites that
confirmed this, but nothing I would post here. The St Petersberg
article and Immihelp were especially convincing. I don't think
alieninusa wants to ask Immigration, although they, of course, would
have the final say...

For what it's worth, I think his wife should find a local gallery that
will accept her work on (cash) consignment. No records, in this case,
seems prudent.

This is a general comment, not legal advice.  

The main issue is the H-4 spouse selling her paintings.  The
immigration service will likely not be interested in this activity
unless it is of such volume that it appears to be "work".  There is no
restriction on someone painting in their free time.  Similarly there
is no restriction on someone selling their possessions on eBay or
other forum regardless of their visa status.  The question would
likely come down to whether the spouse is holding herself out as a
professional painter, the amount of money she is making on this
activity, time spent on this, etc.  Painting as a hobby and selling a
few paintings would most probably not be of interest to immigration. 
To engage in higher profile painting and sales, she should investigate
switching into an employment visa category such as O-1, H-1B,
Permanent Resident, etc.

One point of clarification -- an H-1B holder may incorporate and own a
business in the U.S.  But he couldn't be employed by the business
without first obtaining the proper visa status for that company. The
H-1B is employer-specific, so a new visa would usually be required for
each company the person wants to work for.

FYI -- AILA.org is the American Immigration Lawyers Association, where
you may obtain informaiton and referals to ethical immigration
attorneys.

Good luck,

Sean