Let’s Work Together

Foreign Students Wanting to Start a Business in the United States

May 28th, 2013

Business seminarAn F-1 visa is issued to international students who are admitted to or enrolled in a US college or university on a full-time basis. F-1 students are expected to complete their studies by the expiration date on their I-20 form (Certificate of Eligibility for Nonimmigrant Student Status) which comes from the university they will be attending.

F-1 students are allowed to work in the United States, but only under certain conditions issued by the United States Citizenship and Immigration Service (USCIS).  An F-1 student who has approval to work during their academic program must maintain a full course load at all times.  The student may work up to 20 hours per week for the university during the academic year or work full-time for the university during campus breaks and vacation if enrolling for the upcoming semester.  The International Student and Scholars Office may have additional requirements that could restrict employment and what types of jobs that student can hold.

An F-1 student may be eligible for Curricular Practical Training (CPT), which is an internship or practicum that is directly related to the student’s major course of study.  CPT must be an integral part of the student’s established curriculum.  CPT cannot be used for self-employment.  CPT must be recommended by the student’s academic advisor and authorized in writing by a Designated School Official.  Generally, students are only eligible for CPT after completing one full academic year of full time enrollment and only students who are maintaining status are eligible for CPT.

An F-1 student wanting to start a business that is directly related to his/her major area of study may be eligible for Optional Practical Training (OPT).   An F-1 student may be authorized for up to 12 months of full-time OPT after the completion of their academic program, and becomes eligible for another 12 months of OPT when he or she seeks another post-secondary degree at a higher degree level.  An F-1 student with a qualifying Science, Technology, Engineering or Mathematics (STEM) degree may apply for a 17-month extension of their post-completion OPT, maximum one STEM extension per lifetime.

U.S. Citizenship and Immigration Services (USCIS) is the government agency that oversees immigration to the United States.  USCIS seeks to secure America’s promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and citizenship benefits, and ensuring the integrity of our immigration system.

The H-1B visa may be an option for the individual planning to work for the business s/he starts in an occupation that normally requires a bachelor’s degree or higher in a related field of study (e.g., engineers, scientists or mathematicians), and that individual has at least a bachelor’s degree or equivalent in a field related to the position.  Initial period of stay in the United States can be up to 3 years. Extensions are possible in up to 3 year increments. Maximum period of stay generally is 6 years (extensions beyond 6 years may be possible).

The O-1A visa is for individuals who have extraordinary ability in the sciences, arts, education, business or athletics, which can be demonstrated by sustained acclaim and recognition, and that person will be coming to the United States to start a business in that specific field. Extraordinary ability means a level of expertise indicating that the individual is one of the small percentage of people who have risen to the very top of that field.  Initial period of stay in the United States can be up to 3 years. This may be extended or renewed in 1 year increments as necessary to complete or further the event or activity.

According to the US Department of State, Bureau of Consular Affairs, the Treaty Trader (E-1) or Treaty Investor (E-2) visa is for a national of a country with which the United States (U.S.) maintains a treaty of commerce and navigation who is coming to the U.S. to carry on substantial trade, including trade in services or technology, principally between the U.S. and the treaty country, or to develop and direct the operations of an enterprise in which the national has invested, or is in the process of investing a substantial amount of capital, under the provisions of the Immigration and Nationality Act.  [Treaty countries include:  Argentina, Armenia, Australia, Austria, Bangladesh, Belgium, Bulgaria, Cameroon, Canada, Colombia, Costa Rica, Czech Republic, Democratic Republic of the Congo, Ecuador, Egypt, Ethiopia, Finland, France, Georgia, Germany, Grenada, Honduras, Ireland, Italy, Jamaica, Japan, Kazakhstan, Korea, Kyrgyzstan, Liberia, Luxembourg, Mexico, Moldova, Mongolia, Morocco, Netherlands, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Republic of Congo, Romania, Senegal, Slovak Republic, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Kingdom, and Yugoslavia.]

Treaty trader applicants must meet specific requirements to qualify for a treaty trader (E-1) visa under immigration law. The consular officer will determine whether a treaty trader applicant qualifies for a visa.

  • The applicant must be a national of a treaty country.
  • The trading firm for which the applicant is coming to the U. S. must have the nationality of the treaty country.
  • The international trade must be “substantial” in the sense that there is a sizable and continuing volume of trade.
  • The trade must be principally between the U.S. and the treaty country, which is defined to mean that more than 50 percent of the international trade involved must be between the U.S. and the country of the applicant’s nationality.
  • Trade means the international exchange of goods, services, and technology. Title of the trade items must pass from one party to the other.
  • The applicant must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm. Ordinary skilled or unskilled workers do not qualify.

Treaty investor applicants must meet specific requirements to qualify for a treaty investor (E-2) visa under immigration law. The consular officer will determine whether a treaty investor applicant qualifies for a visa.

  • The investor, either a real or corporate person, must be a national of a treaty country.
  • The investment must be substantial. It must be sufficient to ensure the successful operation of the enterprise. The percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise.
  • The investment must be a real operating enterprise. Speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.
  • The investment may not be marginal. It must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the U.S.
  • The investor must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed.
  • The investor must be coming to the U.S. to develop and direct the enterprise. If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify.
  • The initial period of stay in the United States can be up to 2 years.  This may be extended or renewed in 2 year increments.

As with any information, immigration law should be left to the experts.  For any questions about visas and remaining in the United States, it is highly recommended that you consult an attorney who specializes in immigration law.