Hello dayo7147,
Thank you for your very interesting question.
Some people will say that this cannot be done. However, I believe that
it can be. This depends on the level of work that you put into the
business and whether you'll try to take out profits from it while
you're still in the US. The purpose of the visa-holder not being
allowed to own an American business is so that they do not exploit the
purpose of the visa to be here for a business reason rather than as a
student and to prevent them from becoming competition for American
businesses.
It is much easier to do this with a foreign company than with a US
company; however, some people say that it's even possible with a US
company and in cases where that information may be applicable or
helpful for you, I've included it for reference.
There are many different views and takes on why this can or cannot be
done, so I'll show you all of them in turn.
First of all, here is a mention on the Department of State's F1 and M1
Visa website of a visaholder previously owning a business before
entry:
http://travel.state.gov/visa/temp/types/types_1268.html
"Student Visas"
"All applicants should be prepared to provide:
* Transcripts and diplomas from previous institutions attended;
* scores from standardized tests required by the educational
institution such as the TOEFL, SAT, GRE, GMAT, etc.;
* financial evidence that shows you or your parents who are
sponsoring you have sufficient funds to cover your tuition and living
expenses during the period of your intended study. For example, if you
or your sponsor is a salaried employee, please bring income tax
documents and original bank books and/or statements. If you or your
sponsor own a business, please bring business registration, licenses,
etc., and tax documents, as well as original bank books and/or
statements."
There is nothing said to the effect that if you own your own business,
you must sell it in order to meet the requirements of the visa
process. Instead, the US government appreciates that a visa applicant
owns his or her own business because that means the person is
financially capable of taking care of herself and will not rely on the
dole to do so.
So, this establishes whether a person is allowed to own their own
business prior to the granting of student status. Can a person start
their own foreign business while in the US on the visa? I really see
no reason why not. If you are physically located in the US, but the
business does all its work in Canada, obviously if your main
dedication was for business purposes you would be in Canada instead,
not in the US enrolled full-time studying. If you start an American
business, that is another matter entirely. Then you are here for more
of a business purpose rather than for student matters.
Here is a specific case that definitely pertains to you:
alt.visa.us
"F1 off-campus employment"
http://groups.google.com/group/alt.visa.us/browse_frm/thread/8b2db60563d5bc0c/def2227c15ed2494?lnk=gst&q=f1+foreign+business&rnum=3#def2227c15ed2494
"Does employment via telecommuting of a student of F1 status with a a
foreign company doing no business in US (both offices and clients
outside US) constitute "unauthorized employment"?"
"That's a grey area of the law. It is probably OK, but if you can, I
would avoid it to avoid even the appearance of impropriety -
especially given the extra scrutiny that F-1s are now receiving after
9/11."
While an F1 student is not allowed to work, the main purpose of this
is so that they are not actually in the US to work and so that they do
not provide competition to US companies and workers.
Here is an aspect of this-- an F1 visaholder is allowed to own a
business but cannot conduct the jobs that employees would (this is for
an American company).
alt.visa.us
"Can a F1 holder own his business in the States ?"
http://groups.google.com/group/alt.visa.us/browse_frm/thread/8b4d1259410de25c/1f83812345e7e27d?lnk=st&q=foreign+business+f1&rnum=1#1f83812345e7e27d
"As a matter of fact, the INS decided this very issue a few years back. If
the student organizes a business and monitors its development, but does
not engage in activities for which an employee would normally be hired to
perform, then there is no violation of status. The case that gave rise to
this involved a foreign student who set up a Chinese restaurant. When his
chef suddenly quit and he had to fill in for a few weeks until another
chef could be found, the INS took up the issue of whether this involved
unauthorized employment. In the end, they held that simply owning and
operating a business was not a violation of status, but working REGULARLY
in a capacity that would normally be filled by an employee was a
violation."
Some disagree and say that you cannot OWN a business but you may be
able to be an employee of it.
"Frequently Asked Questions : F visa"
http://www.immigration.com/faq/fvisa.html
"Technically, it may be possible to form a corporation, obtain pre or post
completion employment authorization and then have the corporation hire
you as an employee, but here is the catch-22 as I understand the law:
while it is permissible to
start your own company, it is NOT permissible to derive profit
(including accrued profits or future profits) from it. The regulations
for unauthorized employment define employment broadly. Thus, owning a
company for almost any benefit could amount to unauthorized employment."
This may not be such a huge obstacle; law school only lasts a few
years and many corporation owners put their money back into the
business anyway. You could just put the money back into the company
and not issue it to yourself as dividends until you're off the F1
Visa.
http://www.faqs.org/qa/qa-14943.html
"Is an F1 visa holder permitted to start their own business ..."
"You can start a business, that's easy and no requirement needed.
However as long as you are on F-1 student visa you can not acquire any
income from the business, that would be accepting employment."
The more active you are in the business, the greater the likelihood
that you would be seen as "employed."
(You could also try to get a hardship waiver or apply to be an
employee of your brother's company if you wanted to go that route.)
http://experts.about.com/q/Immigration-Issues-344/F1-Visa-real-estate.htm
"Topic: Immigration Issues"
"If a person is on an F-1 and is therefore not eligible to work,
passive investment is generally permitted. I see the purchase and
sale of real estate as similar to the purchase and sale of stock,
which is normally seen as passive investment. It is possible that if
the income became high (how high is anyone's guess) that USCIS would
claim that you were "employed". I think that the more active you
become in the management and renovation of the properties, the greater
the liklihood of USCIS claiming employment."
Here is a thread in which a potential business owner is advised to
open his business in his country of origin rather than the US.
alt.visa.us
"Openning a business with F1 visa"
http://groups.google.com/group/alt.visa.us/browse_frm/thread/8531716a9a494c08/03e514cd6c0c59eb?lnk=gst&q=f1+visa+business&rnum=2#03e514cd6c0c59eb
"As soon as you work for that corporation in any form, you would have
an INS problem, but as long as you are strictly an investor, you should be
fine. Attending stockholder meetings is pretty much the only activity you
would be allowed to do for this corporation."
"Corporation ownership is not a problem. However, any employment with
this corporation, except under a work visa sponsored by the
corporation, will be a problem for the company and for you. Work for
a corporation which you own entirely is not considered self-employment
as it would be under sole proprietorships and partnerships.
You probably would simplify a lot of things for yourself, and also
open up the possibility of a employer-sponsored green card without
needing labor certification, if you create the business in your
country of origin rather than in the U.S. But that may or may not be
feasible for you."
alt.visa.us
"Using Drop Shipping with an F1 Visa???"
http://groups.google.com/group/alt.visa.us/browse_frm/thread/ae197b712adba2e1/65e7c97d1b75d12c?lnk=gst&q=f1+visa+business&rnum=4#65e7c97d1b75d12c
"If you hold F-1 optional practical training, and it is plausible that your
operating this business is working in the field of your degree, then you
have a plausible case that your running the business is legal."
"F1 - start my own business ???"
http://groups.google.com/group/alt.visa.us/browse_frm/thread/11ea55672866c028/50f4be9b4cb7dc5b?lnk=gst&q=f1+visa+business&rnum=6#50f4be9b4cb7dc5b
"F-1 visa does not stop you from starting a business if you have the
capital to invest in the new business, US immigration law actually
encourage you to start the business here. You just can't work in this
business and get paid."
"You can start your own business and then sponsor yourself for work
visa. It's done all the time. You'll want to incorporate, get
fed-employee i.d. # and then go through attorney to help w/ conversion
of your visa."
"F-1 and investing in business"
http://groups.google.com/group/alt.visa.us/browse_frm/thread/7f6aa3659c11dbea/95edc751b5557f88?lnk=st&q=f1+visa+business+home+country&rnum=2#95edc751b5557f88
"My brother-in-law owns a restaurant. I am thinking of becoming a
partner in his business.
What are the immigration laws regarding F-1 visa carriers and owning a
business? Would I need to change to another visa if I were to be a
partner?"
"If "partner" means "investor" and you don't actually work for him,
then you can do that on any type of visa, or even without a visa at
all - however, such a relationship would not give you any right to be
in the US. So you would have to continue to study on your F-1, or find
an H-1 sponsor and actually work there, or similar.
If being a partner means actually working there - whether as a
manager, a chef, a waiter, a host, a bus boy or whatever other jobs
there are in a restaurant - then you would need the appropriate visa
and work authorization."
Additional sources:
alt.visa.us
"F1 Visa and Corporate license ???????"
http://groups.google.com/group/alt.visa.us/browse_frm/thread/f48e565ab052d462/107fecb1592300e3?lnk=gst&q=f1+visa+business&rnum=8#107fecb1592300e3
Search terms:
f1 visa own foreign business
f1 visa start business
(On Google Groups)
foreign business f1
(alt.visa.us)
foreign business f1
f1 foreign business
If you need any additional clarification, let me know and I'll be
happy to assist you.
--keystroke-ga |
