There are plenty of us that got into the green card waiting line in 2007 or earlier. To me, it feels like it just happened, but it’s almost 3 years!! And we’re still in line, which hasn’t moved an inch. Many of us have an EAD (employment authorization document) as a result of being in the pending green card status. Many of us also have an H1-B or other such visa. If you have an EAD, then you CAN start and run a business - any business - as you please. Of course, if you are the primary on the green card process, you’ll still have to keep your current job (which you can change on AC21).  Even if you don’t have an EAD and are only on the H1-B, you can still dabble in business but that’s a lot riskier - I will write a separate post on that topic, but this post is about running a business on EAD.

Since I am in that position and know several people out there that are in that position as well, I have some insight into this issue. I also have my own part-time business so I have some experience in this matter as well. Most of my buddies that want to start a business on EAD, don’t do it from fear of jeopardizing their green card process. That’s a misconception!! You do NOT jeopardize your green card process by starting a business as long as you do it right and follow the rules.

Before I go further, let me say that it’s of course better to start a business once you have your green card for at least a year. That is of course the cleanest option. While you wait for the green card, you can build skills that will help you start a business eventually, Etc. But not everyone can wait for years for the green piece of #$@# to arrive. Some of us are impatient and risk-takers. This is for them.

You are no longer on H1-B if you start a business: H1-B visa does not allow “working” on anything else other than your full time 40-hours/week job that the H1-B petition was for. Not even if it’s part time and not even if it’s a hobby. There are some gray areas, but we’ll go with this for now.

** Correction: Thanks to Eros for pointing out that it is possible to apply for a second H1-B visa for part time work another 20 hours/week on top of the first H1-B visa. Note that the second H1-B still needs to be compliant with all H1-B laws and is only awarded for occupations that have a demonstrated shortage in local workforce (engineers, nurses, doctors, Etc.) and most likely the second H1B will need to be another “job” not your own business, unless you have an established business since H1-B is usually not awarded unless the company proves that it’s able to pay your salary. There are workarounds, but this is the usual scenario. Again, thanks to Eros for bringing this up.

So, in other words, when you start a business, you are working on your EAD automatically. And that means you are on EAD for both your day job AND your side business. There is no such thing as working for your employer on H1B and working on your business on EAD. I know several attorneys don’t get this (isn’t that crazy!) and several people don’t follow this and perhaps they’ll get away with it, but the cleanest way to do it is to let your employer know that you want to work on the EAD and not H1-B. You just have to fill out an I-9 form and provide your EAD (instead of the H1-B visa stamp) for employment verification, that’s all. No big deal. Most employers will not even care what document you use to prove your employment verification, as long as you have one. In fact, it’s better for them - now they don’t have to follow H1-B wage restrictions/policies, etc. and they also don’t have to renew your H1-B when it expires. This is what I’ve done and I know it works. You do run a slight risk that if your green card petition was rejected for some reason, you don’t have a H1-B to fall back on. But hey, 5+ years later, when they do adjudicate your green card petition, there should be no reason for a rejection unless you’ve done something wrong, in which case you probably won’t be allowed to stay on H1- B anyway. So stop worrying and go for it if you really are clean and want to start a business!

It will most likely have to start as a part time thing, at least for you. Your spouse can work on it full time though (if she has or can obtain some sort of work authorization). Or you can hire someone to work full time, here or anywhere in the world. For instance, if it’s an online business, you can hire people in India or elsewhere via odesk.com, naukri.com or any such sites to work for you. Another option is to team up with other people that can work full time, or others that can work part time as well just like you.

Of course, all that is easier said than done, but it’s possible and I know people that have done it (I am one).

Say you start your business and it does TAKE OFF!! Then what are your options? If you’ve saved up $500k in personal assets, now you can apply for a green card under the EB-5 category, which the Govt. loves, because it generates American jobs, and get your green card in 12-18 months. Does that sound good? It is! The EB-5 visa requires you to invest $500k (if its in certain specific rural areas) to $1 million of your own personal funds and generate employment for up to 10 Americans within a 2 year period from the date of starting the business. An easier option is to move your green card process to your own business under AC-21 but the key there is that your new job (running your own business) has to be same or similar to the job description on your labor petition for the green card. If that’s not a problem, then that’s an easier route. Don’t worry about all that now though. Just know that you do have options to move full time if your business takes off and makes a million dollars!

Now, always make sure that your employer is OK with a part-time business. This is a very sticky point for many and employers usually don’t like their employees to be doing other things part time. But honestly, everyone does SOMETHING with their free time. Some listen to music for hours or watch TV, some play games all night, what the heck, you want to start a business! It’s your call and if you are like me, don’t work for someone that doesn’t understand that. When I took my current position, I let my employers, including my boss and his boss know, during the interview process, that I have a part-time business. It was in hobby proportions and I was only working <10 hrs per week on it with 2 other people working full time, and I was happy to share all that with them. They still took me!! And my boss appreciated my honesty. Now I know that may not happen with everyone, but I do believe that if you put it right, and make sure that you truly do want and like the job that you are interviewing for, then it can work out. You just have to present it right. I said that I’ve always had an entrepreneurial spirit and like engaging in such a business for a few hrs/week and that helps satisfy that need, so I can focus better at my job. In fact, most employers appreciate someone that’s a self starter and has had entrepreneurial exposure. You don’t have to dwell on the subject, just play it to your advantage and make it sound like a POSITIVE instead of the other way around. It’s always better to be honest upfront than have them find out about it from some third party and think that you were hiding it all along, when it may not be a big deal at all.

So go chase your dream starting now - you don’t HAVE to wait for the green card!

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