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O-3 visa - can I start a small business?

O-3 visa - can I start a small business?

Old Mar 2nd 2010, 10:21 pm
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Default O-3 visa - can I start a small business?

Just a thought, but I'm in the US on an O-3 visa, dependent on my geeky-clever husband's O-1, and have been since August 09, which means I can't take paid employment. Does anyone know if that includes me starting a small business in the US? I'm having trouble wading through the immigration lawyer websites to find useful information about this.
We're both non-immigrants at the moment but my husband is being sponsored for his GC in the next few months - would that give us more freedom to start a small business? Does it make any difference what visa you're on if you're investing here - is that an entirely different visa situation? Would he have to be my employer?! (He'd love that! )
Thanks in advance!
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Old Mar 2nd 2010, 10:34 pm
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Default Re: O-3 visa - can I start a small business?

Originally Posted by CherylH View Post
... and have been since August 09, which means I can't take paid employment.
It also means you can't take "unpaid" employment. You are not allowed to "work for free". IOW, it means you can't work. Full stop. End of story.


Does anyone know if that includes me starting a small business in the US?
Will you be working in support of that business? If yes, then yes.


... my husband is being sponsored for his GC in the next few months - would that give us more freedom to start a small business?
You can start a small business *when* you have received a GC... but not before. Being sponsored for a GC, or having a GC in process is not sufficient.

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Old Mar 2nd 2010, 10:40 pm
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Default Re: O-3 visa - can I start a small business?

I am not an attorney, but I believe you can invest in a small business here...but you can't actually do any work, if you are not work authorized.

You say your husband is being sponsored for his GC in the next few months...will you also be getting yours along with? If so, you can apply for an EAD (Employment Authorization Document) along with the adjustment of status, and once you have the EAD in hand, then you can work, including for your small business.

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Old Mar 2nd 2010, 10:43 pm
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Default Re: O-3 visa - can I start a small business?

Originally Posted by ian-mstm View Post
You can start a small business *when* you have received a GC... but not before. Being sponsored for a GC, or having a GC in process is not sufficient.
I think it depends on what you mean by that imprecise term 'having a GC in process'.
People with EADs are allowed to work.
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Old Mar 2nd 2010, 10:47 pm
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Default Re: O-3 visa - can I start a small business?

No, you can't start a small business in the US (or anywhere else either) and be paid (or take an active part) whilst in O-3 status.

As an O-3, you can basically only do volunteer work. Even then, you have to be absolutely sure that there are no circumstances where it could be paid. i.e you can't just volunteer to work for free, if it would normally be a paid position.

When the GC application gets to the stage where the I-485 is submitted, you can apply for an EAD. Once you have this, you will be able to work.

I do not know the rules concerning starting a business whilst AOS is pending and using an EAD, but I have seen many reports of that happening. So, I'm not convinced ian-mstm's answer is totally correct.

If you are applying in EB1 or EB2-NIW, where no PERM is required, then the timescale to apply for an EAD need not be too long (but it will still be a lot longer than you think). I mention this because of your husband's O-1 status.

PS I used to be an O-3 as well, so I feel your pain.

Last edited by sangiano; Mar 2nd 2010 at 10:52 pm.
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Old Mar 2nd 2010, 11:11 pm
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Default Re: O-3 visa - can I start a small business?

Originally Posted by CherylH View Post
Just a thought, but I'm in the US on an O-3 visa, dependent on my geeky-clever husband's O-1, and have been since August 09, which means I can't take paid employment. Does anyone know if that includes me starting a small business in the US? I'm having trouble wading through the immigration lawyer websites to find useful information about this.
We're both non-immigrants at the moment but my husband is being sponsored for his GC in the next few months - would that give us more freedom to start a small business? Does it make any difference what visa you're on if you're investing here - is that an entirely different visa situation? Would he have to be my employer?! (He'd love that! )
Thanks in advance!
An interesting question which raises a lot of issues. I am not giving advice, but my initial reaction is a shrug and the thought "perhaps." There is some pretty old case law on what was considered "employment" and what was not.
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Old Mar 2nd 2010, 11:24 pm
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Default Re: O-3 visa - can I start a small business?

Originally Posted by Noorah101 View Post
If so, you can apply for an EAD (Employment Authorization Document) along with the adjustment of status, and once you have the EAD in hand, then you can work, including for your small business.
Oops... quite right. My bad. I had GC on the brain and not EAD.

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Old Mar 3rd 2010, 12:18 am
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Default Re: O-3 visa - can I start a small business?

Originally Posted by ian-mstm View Post
Oops... quite right. My bad. I had GC on the brain and not EAD.

Ian
Thanks all - really helpful responses and gives me a starting point for more research. ian-mstm: what I meant was people on O-3 are permitted to take unpaid employment only in the form of voluntary work, which I am doing at the moment for a charity, but sadly, there's no pay check at the end of the month...
Sangiano: thanks for your advice, did you apply for your GC at the same time as your other half or did you have to wait for them to get theirs first? Approx how long is the EAD timescale for an EB1 (this is prob the route his company will take). How long were on an O-3 for before your AOS? This is a whole other post now I spose!
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Old Mar 3rd 2010, 12:27 am
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Default Re: O-3 visa - can I start a small business?

The green card applications go in together.
The EAD is an interim benefit of the green card application I-485; it is for the time between submitting I-485 and approval of I-485.
The EAD takes 90 days from application to receipt.
EB1 is not related to the EAD.
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Old Mar 3rd 2010, 2:48 am
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Default Re: O-3 visa - can I start a small business?

Originally Posted by CherylH View Post
Thanks all - really helpful responses and gives me a starting point for more research. ian-mstm: what I meant was people on O-3 are permitted to take unpaid employment only in the form of voluntary work, which I am doing at the moment for a charity, but sadly, there's no pay check at the end of the month...
Sangiano: thanks for your advice, did you apply for your GC at the same time as your other half or did you have to wait for them to get theirs first? Approx how long is the EAD timescale for an EB1 (this is prob the route his company will take). How long were on an O-3 for before your AOS? This is a whole other post now I spose!
You do not disclose where you live. An interesting case to read in your research: Bhatka v INS, 667 F.2nd 771 (9th Cir. 1981). 8 CFR part 274a is also an interesting read. No advice is intended nor given.

Last edited by S Folinsky; Mar 3rd 2010 at 2:52 am.
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Old Mar 3rd 2010, 3:22 pm
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Default Re: O-3 visa - can I start a small business?

Originally Posted by S Folinsky View Post
You do not disclose where you live. An interesting case to read in your research: Bhatka v INS, 667 F.2nd 771 (9th Cir. 1981). 8 CFR part 274a is also an interesting read. No advice is intended nor given.
Very interesting indeed. It is also almost 30 years old. Do you know if it has been "superseded" by later decisions ? or is it still a case that is used as precedent in current cases ?
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Old Mar 3rd 2010, 7:30 pm
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Default Re: O-3 visa - can I start a small business?

Originally Posted by A I View Post
Very interesting indeed. It is also almost 30 years old. Do you know if it has been "superseded" by later decisions ? or is it still a case that is used as precedent in current cases ?
I did run it through WestLaw's subsequent case history. I will admit to being puzzled by a comment that a published case is "old." The Supremes cite Marbury v Madison all the time -- and that case 207 years old.
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Old Mar 3rd 2010, 8:46 pm
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Default Re: O-3 visa - can I start a small business?

Originally Posted by S Folinsky View Post
I did run it through WestLaw's subsequent case history. I will admit to being puzzled by a comment that a published case is "old." The Supremes cite Marbury v Madison all the time -- and that case 207 years old.
I work in Software development. To me, In my field of work, Anything older than 10 years in ancient. In my ignorance I wanted to see if it was still "relevant" or "standing" or whatever the correct term for "still applies" is.

I certainly appreciate the response !
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Old Mar 3rd 2010, 9:01 pm
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Default Re: O-3 visa - can I start a small business?

Originally Posted by CherylH View Post
Sangiano: thanks for your advice, did you apply for your GC at the same time as your other half or did you have to wait for them to get theirs first? Approx how long is the EAD timescale for an EB1 (this is prob the route his company will take). How long were on an O-3 for before your AOS? This is a whole other post now I spose!
I was on O-3 for slightly over a year before the company started the GC process in EB-1B category.

Then it was many weeks whilst the attorney pulled the case together and wrote the petition letter. We had most of the information already from the O-1 application, but getting new recommendation letters tailored to EB1 rather than O-1 took quite some time.

In contrast, a friend on H1B, starting at the same time, took a full 2 full months longer to gather the required information.

We both filed concurrently in May and the I-485 was approved in October (144 days).

My EAD took longer than most at just over 2 months from submission.

Although the EB1 and EAD are not directly linked, the significant feature of EB1 is that no PERM (Labour Certification) is required before submitting the I-140 (and I-485 concurrently).

Since the PERM stage can take anything from 6 to 24 months (if audited), this factor significantly cuts down on the timescale to having an EAD in your hand.

Oh, and be prepared to be landlocked after I-485 submission until your Advance Parole is received (again 2-3 months).

If you leave and are re-admitted on an O visa, your I-485 is considered abandoned. This is not true for some other visa types, but it does apply to O.
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