If your American dream includes owning a business in the United States, then you’re in good company. A study by the Small Business Administration reports that roughly one out of every ten immigrants owns a business in the US.
We may be biased, but we believe Oklahoma is the best place in the country for entrepreneurs to launch their new businesses. With low operational costs, low unemployment rates, and the low cost of living, starting your new business in Oklahoma will give it the best opportunity to grow and thrive.
What’s even better is that you don’t need to wait until you’ve received your green card to start your business. In this article, we’ll walk you through what you need to know about starting a business in Oklahoma, and the types of visas that allow you to pursue your entrepreneurial ambitions in the United States.
Business requirements in the US
Oklahoma is a state on the verge of becoming a hot spot of entrepreneurial opportunity. Long dominated by the oil and gas industries, Oklahoma has begun to attract other profitable sectors like tourism, agriculture, medical, and technology.
Now is a great time to start a business in Oklahoma, so to get you started, below is an overview of some things you’ll need to do when you start your business.
- Decide what type of business structure will work best for your business. You might decide to become a limited liability company (LLC) or a corporation. Keep in mind that some business structures will require you to be an American citizen, so make sure you check the requirements for each structure before you decide on one. Learn more about Oklahoma’s business structures here.
- Register your business name with the Oklahoma Secretary of State’s Office.
- If you are starting a business while living in another country, you will need to designate a registered agent to receive legal documents for you. Your immigration attorney can help to provide recommendations.
- Apply for an Employer Identification Number (EIN). You don’t need to have a social security number to apply for an EIN. Most businesses in the US need an EIN for identification, and so they can pay taxes.
- Open a US bank account. You will need to be in the United States to open a bank account, and you may be required to do so in person. Once you choose a bank, contact them to find out what documents they require to open your bank account. It’s best to do this before visiting them, so you can save time by ensuring you take all the required documents.
- Secure an Oklahoma mailing address for your business. Even if your business does not require a physical location to operate from, you do still need a valid Oklahoma mailing address. If you would prefer not to register your home address as your business mailing address, you can use mail forwarding or virtual office services.
A side note: If you already own a business in your home country, you can register that company as a managing member of your new US company. However, there are some legal requirements around the business structure you choose and how much involvement you can have in your new company in the United States. It’s best to contact an immigration lawyer who specializes in employment-based cases when considering this route.
Types of visas for entrepreneurs
While you are not required to have a green card to start a business in the United States, certain types of visas will provide you with the most flexibility in your entrepreneurial pursuits.
Listed below are some of the visas available, along with some information about the requirements of each visa.
E-2 visa for entrepreneurial investors
To be eligible for this visa, you must be a citizen of a treaty country. You must also have a substantial amount of capital to invest in your new company. The amount required is based on your company’s market value or the market-assessed capital needed to successfully launch the business.
E-2 visa with a national interest waiver
This visa option allows you to bypass the usual requirement that comes with many employment-based visas of having a job offer. Since you intend to start a business in the United States, you most likely will not have a job offer, so this visa might be a good choice for you.
To qualify for this visa, you must be able to prove these three key factors:
- Your business will benefit the US economy in the areas of culture, society, education, or technology.
- You can handle the potential success of your business. USCIS will consider your educational background, work experience, record of success, and your business plan. You don’t need to prove that your business will succeed, but you do need to show that you can handle the success your company may achieve.
- Waiving the job offer requirement benefits the US more than requiring you to have a job offer in this case.
EB-5 green card for investors
This option is similar to an E-2 investment visa, but has more stringent requirements. To be eligible, you must invest $1 million in a US-based company. However, if you are creating your business in a more rural area of Oklahoma or the US, or an area with a low employment rate, the investment minimum is lowered to $500,000, and you are also required to create at least ten jobs for US workers in two years.
The benefits of this option versus an E-2 visa are that you are not required to be a citizen of a treaty country, and it is a direct route to permanent residency status if you meet all requirements, including the hiring of ten US citizens after a two-year period.
L-1 visa for intracompany transferees
You are eligible for this visa if you are an executive at an existing company in your native country, or you have specialized knowledge that your company requires you to use at their US affiliate, branch, or subsidiary company. This type of visa is valid for one year if you’re setting up a new office in the United States for the transferring company. If you are here for other company business, you can receive an extension for up to three years.
An interesting benefit of this option is that the spouse of an L-1 visa recipient can apply for independent work authorization while in the United States. This provides the spouse with a unique opportunity to find a job or start their own business.
F-1 visa for entrepreneurial students
If you are a student on an F-1 visa, you can only work for an outside business if you have work authorization from your student advisor. However, once you graduate and receive Optional Practical Training (OPT) authorization as permitted on an F-1 visa, you can start your business and make money from it, as long as it is related to your degree.
Keep in mind that OPT only gives you a 12-month extension on your F-1 visa after graduation, although there is a 24-month extension available for students doing science, technology, engineering, and mathematics (STEM). If you use your time wisely and create the groundwork for your business before you graduate, such as finding investors and developing a business plan, you can start your business as soon as you graduate while simultaneously exploring other employment-based visas before your F-1 visa expires.
Whichever visa you choose, there are two important things to remember when applying for a visa to start a business in the United States:
- Always be prepared for delays in your immigration process. Unexpected delays, petition denials, or requests for more documentation from USCIS can cost you precious time.
- Most of these visas are issued on the assumption that you intend to start a business that will create jobs for US workers. This means that when it comes time to renew your visa, your petition runs the risk of being denied if you choose to hire only people from outside the US.
To find out more information on the above visa options and others, like TN visas for Canadian and Mexican entrepreneurs, O-1 visas for entrepreneurs with extraordinary ability, or B-1 visas for visiting entrepreneurs, read this article.
The international entrepreneur rule
Another option for foreign entrepreneurs has recently been introduced on March 18, 2018: The International Entrepreneur Rule. This rule is still in effect at the time of this writing, but it may end soon. However, we feel that it is worth mentioning.
This new rule allows the Department of Homeland Security (DHS) to “parole” entrepreneurs whose new company intends to provide a significant benefit to the US economy. To be on “parole” means that you are allowed to enter the US to start your company without a visa. This is only granted on a case-by-case basis.
The rule requires the following:
- The company must be less than three years old at the start of the petition.
- The applicant must own at least 15% of the company and play an active role in the company.
- The applicant must maintain an income that is 400% higher than the current poverty line. (This is currently $12,060 for a single person.)
- Only three people per company can apply for parole status.
- The applicant must be able to prove that the company has the potential for significant success—this can be established by capital investment, government funding, and in other ways, like by producing innovative technologies.
Read more on this topic in an article from Entrepreneur about the International Entrepreneur Rule.
DHS is currently complying with the rule, but you have a small window of time to take advantage of the rule, because DHS is in the process of removing it because they believe “it is not the appropriate vehicle for attracting and retaining international entrepreneurs and does not adequately protect US investors and US workers.”
To read more about the International Entrepreneur Rule and to sign up for email updates, visit the USCIS website.
Can you start your new business while on an H-1B visa?
The short answer is yes, but there are a lot of things to consider when starting a new business while complying with the rules of the H-1B visa.
To retain an H-1B visa, there needs to be a clear employee/employer relationship—for example, you must have proof that you work at the employer’s office and have daily contact with the employer, or use the employer’s equipment. If you came to the US because of a job offer, you would have proven that relationship when your H-1B visa application was accepted. When it’s time to renew your visa in three or six years, you still need to be able to prove that relationship with your sponsoring employer.
Furthermore, to not violate your H-1B visa status, you must be able to prove that your employer has the “right to control” your employment status. This is defined as setting your work hours, salary, job description, and employee benefits. If you leave your sponsoring employer to start your own business while on an H-1B visa, you can no longer prove that this is applicable.
However, there are ways to abide by these rules without violating your visa—take a look at this memorandum by USCIS about employee/employer relationships. One way is to hire a board of directors or CEO who controls your employment status. This makes you an employee of your company and sets a clear employee/employer relationship. You can also protect your visa status by not being the sole proprietor of your company and by proving that your position was not created for the sole purposes of obtaining an H-1B visa.
A final option of maintaining your H-1B status while starting a business is to be an investor or shareholder in your company instead of an employee. However, this option prohibits your involvement in the operation of your company.
Your next steps
Navigating the immigration system while pursuing your business dreams may seem overwhelming. We hope that future legislation will make this process easier, and encourage more entrepreneurs like you to start businesses in the US.
However, just because the process can be overwhelming and confusing now doesn’t mean you need to wait around for the “easier route.” To quote the 26th President of the United States, Theodore Roosevelt, “Nothing in the world is worth having or worth doing unless it means effort, pain, difficulty.”
Now is the time to start your business in Oklahoma, and you don’t have to take your next steps alone. At Stump & Associates, we will work with you to ensure you have the best chance of creating a new business in the United States.