Hello and thank you for your question.
The Immigration and Nationality Act is the law that governs the
admission of all foreign nationals to the United States. You can read
or search the text of the law at
IMMIGRATION AND NATIONALITY ACT
http://www.ins.usdoj.gov/lpBin/lpext.dll/inserts/slb/slb-1/slb-21?fn=document-frame.htm&f=templates&2.0
You will need a suitable visa to allow you to come to the US and work.
The visa that is appropriate in your case is an H-1B visa that allows
a person with a “specialty occupation” to lawfully work in the US for
up to 6 years. A specialty occupation is one that “requires
theoretical and practical application of a body of specialized
knowledge along with at least a bachelor’s degree or its equivalent.
For example, architecture, engineering, mathematics, physical
sciences, social sciences, medicine and health, education, business
specialties, accounting, law, theology, and the arts are specialty
occupations.”
H1B Frequently Asked Questions
http://www.ins.usdoj.gov/graphics/howdoi/h1b.htm
If this method is going to be successful, your American company will
have to be a genuine, operating company. Since your company will be
sponsoring you for the H-1B visa, your company will be required to
file a Form I-129 with the Immigration and Naturalization Service
(INS).
Form I-129
http://www.ins.usdoj.gov/graphics/formsfee/forms/i-129.htm
There is a limit on how many H-1B visas the US will grant each year:
“Section 214(g) of the Immigration and Nationality Act (Act) sets an
annual limit on the number of aliens that can receive H-1B status in a
fiscal year. For FY2000 the limit was set at 115,000. AC21 increases
the annual limit to 195,000 for 2001, 2002 and 2003. After that date
the cap reverts back to 65,000. . . . H-1B workers who are employed
by or have an offer of employment from
Institutions of higher education;
Related or affiliated nonprofit entity, or
Nonprofit or government research organization”
are not counted against the current 195,000 annual limit.
The fact that you are the owner of your business does not disqualify
you from making this application, but you will have to be able to
convince the INS reviewer that it is an American business that needs
to bring you into the US. Since up to that point you will have been
running the business from abroad that may be a hard argument for you
to make.
Is there any possibility that you can get a job offer from a US
company first, then come here, work for them a while, start your
independent business, and switch your visa over to the new company as
a change in employment status? Your independent company will still
have to file another Form I-129 but I think it will have a better
chance of passing the review if you are already in the US and working.
The change in employment status will be a change in –who- employs
you. The specialty occupation that you are working in must remain the
same, so in looking for the US job that brings you into the country,
you will have to limit yourself to the same occupation that you plan
for your own company (this may rule out coming to the US as a
university teacher—that’s an exempt area so you might get the first
application approved, but because your independent company won’t be a
university, you won’t be able to switch your visa to it under the
rules for changes in employment status).
H1B Frequently Asked Questions
http://www.ins.usdoj.gov/graphics/howdoi/h1b.htm#must
Changes to the H-1B Program
http://www.ins.usdoj.gov/graphics/publicaffairs/questsans/h1bchang.htm
Additional Links:
H1B Portability
http://www.schulzlaw.com/mschulz_h1gen.php#h1portability
Immigration Law Center
http://www.visaus.com/qualify.html
Google Answers (previous questions)
http://answers.google.com/answers/main?cmd=search&q=H-1b&qtype=all
Google Search Terms:
"h1b" visa INS
h1b portability
Good luck and thanks again for your question. If you find any of my
answer unclear, I would appreciate your holding off on rating my
answer until I have an opportunity to respond to a request for
clarification.
Sincerely,
Google Answers Researcher
Richard-ga
Disclaimer:
This answer is general information, and is not intended to substitute
for informed professional, tax, legal, investment, accounting, or
other professional advice. |
