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How can I run my own EB-5 business on an H-1B visa?

I am currently on an H-1B visa in the U.S. Can I apply for a direct EB-5 visa and run my own business while keeping my current job and working for the employer who applied for my H-1B visa? If not, will it make a difference if I do not manage the business on a daily basis but just work as a consultant?

Answers

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    Julia Roussinova

    Immigration Attorney
    Answered on

    You cannot actively manage your own EB-5 business or work as a consultant for such a business without violating the terms of your H-1B. It is possible to be a passive investor in your own EB-5 business with a U.S. work-authorized manager to manage your EB-5 business. This option will allow you to keep your H-1B status.

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    If you are in H-1B status, then there are different options for you to seek U.S. permanent residency based on an EB-5 investment. However, if you are in H-1B status, then you cannot run your own EB-5 business and you cannot serve as a consultant for this business.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    To get an H-1B you must have a legitimate employer-employee relationship, and to do so you must not control the board. So the only way is if you have a minority share in the business and an independent board that can fire you.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    It is not feasible to run an EB-5 business on an H-1B visa. The general rule is that if you start a direct investment pursuant to an approved EB-5 immigrant visa, as the owner of the business, you are required to participate in the day-to-day operations of the business. Furthermore, if you have been approved for EB-5, you are an immigrant (a permanent resident), thus rendering the H-1B non-immigrant visa unnecessary. Finally, if you are a permanent resident, you can work for any employer, including operating your own business. Advisably, since you are currently on an H-1B visa, you can file an EB-5 petition and, upon approval, you will be granted conditional immigrant status. Consult an immigration attorney for further information on your ideas and plans on the two visas.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Under H-1B status with a pending I-526, you are not authorized to operate/work for the EB-5 business, unless the EB-5 business is the petitioner of your H-1B. You will need to hire someone else to manage/operate the business until you are authorized. You can oversee the operation but cannot actively manage the business while maintaining H-1B status.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    You can be engaged on a policy and executive level in your EB-5 business.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Not possible unless you get a second H-1B to work in your own business or hire someone else to run it.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    You only need to be a policy-setting member, such as a board of directors member, instead of running day-to-day operations. You may hire a general manager to do the day-to-day management. Please note that this new business must be successful enough to create 10 full-time jobs and sustain them for several years, which may be harder than you think, especially when you are trying to run it remotely while your attention must be on your full-time job elsewhere. Make sure you consider all aspects and challenges you will face before taking this step.

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    Charles Foster

    Immigration Attorney
    Answered on

    Yes, while you are in H-1B visa status you certainly are eligible to file an EB-5 investor direct investment petition on Form I-526. Your H-1B status is job specific and would not provide you with work authorization to work in your EB-5 financed business. However, depending upon the size of the business, it may be possible to file a concurrent H-1B petition in the name of your EB-5 business and acquire a concurrent H-1B status. This may or may not be possible depending upon the size of the business, and the fact that you are an owner would be viewed as a negative factor. If working as a consultant is considered a job, even a part-time job, you would still need to be authorized to work.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    Your H-1B allows you to work for the petitioning U.S. employer only. As for "consulting" the other business, I think of the saying "if it quacks like a duck," in that if it looks like you are working for another company, you are probably working for another company, regardless of getting paid or not. That said, setting up the new business would likely be OK, but actually participating in that business and providing goods or services would not until you are done with the H-1B and have the EB-5 approved.

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