Opening a Digital Business in the U.S.: Help or Hindrance?

“I’m going to open my company in the United States” — it’s one of the most repeated lines among people who dream of the American market. And one of the most misunderstood. Because “owning a company” and “working in that company from inside the U.S.” are two things U.S. immigration treats in radically different ways. One is free; the other can cost you dearly.

This piece separates the two honestly. Not to discourage anyone — opening a digital business in the U.S. is, in many scenarios, perfectly legitimate and even smart. But to show exactly where the law draws the line, and how to stay on the right side of it.

Owning isn’t working

Start with the good news almost no one explains correctly: owning an American company is not, in itself, an immigration activity. You can be in your home country, with no visa at all, and be a member of a U.S. LLC or a shareholder of a C-corp. Ownership is a capital relationship, not a labor one.

The only corporate restriction that really matters for foreigners is the S-corporation one:

An S-corporation may not have a “nonresident alien” as a shareholder — 26 U.S.C. §1361(b)(1)(C).

That’s why the overwhelming majority of foreigners choose the LLC or the C-corp: in those, ownership by a non-resident is entirely free. The company can exist, earn revenue, and grow while you live far away.

Being an owner is allowed

The upside: this is the cleanest arrangement. Forming the company, being a member, receiving profit distributions as an investor — none of that, on its own, is “working in the U.S.” You can have the structure ready before you even set foot in the country.

The risk: it appears the moment “being an owner” turns into “operating the company from inside the territory on the wrong visa.” It’s a thin line, and it’s where most people stumble. Owning is a right; working requires authorization. Hold on to that sentence.

What the tourist can do

On a business-tourist visa (the B-1), there’s a list of what’s allowed — and it’s short and specific. The consular manual authorizes things like:

Negotiating contracts, attending meetings and conferences, and conducting independent research — B-1 activities listed in 9 FAM 402.2-5(B).

Notice the pattern: all of this is preparing, negotiating, representing — never producing. You may come to close a partnership, open an account, meet suppliers. What you may not do is sit down and run the operation.

Where the law draws the line

For the investor, the manual is even more explicit about the limit:

An investor in B status is “precluded from performing productive labor or from actively participating in the management of the business while in the United States” — 9 FAM 402.2.

In other words: you may invest and supervise from afar, but you may not actively manage or produce from inside the U.S. on a tourist visa. It’s the exact translation of “owning isn’t working” — the law rewards capital but bars unauthorized labor.

Operating as a tourist is risky

Now the most common and grayest scenario: you enter as a tourist and keep “running” the digital business from your laptop — serving American clients, coding, providing services. Let’s be honest: no law resolves this case cleanly. It’s genuinely gray.

But the regulation that shuts the work door on tourists has no middle ground:

“A nonimmigrant in B-1 or B-2 status may not engage in any employment” — 8 CFR 214.1(e).

Actively operating your business from inside the territory, generating income through your own labor, is exactly the kind of activity that rule reaches. Gray doesn’t mean safe.

The 90-day rule

There’s also a trap of perception. If you enter as a tourist and, in the very first weeks, start working, the consulate may presume you lied about your intent at entry. It’s the so-called 90-day rule:

Conduct inconsistent with status within the first 90 days — the first example being “engaging in unauthorized employment” — can support a presumption of misrepresentation — 9 FAM 302.9-4(B)(3).

Important: this is consular guidance, not a section of the INA. But it shapes real decisions, and ignoring it is naïve.

The harshest bar

Why does this matter so much? Because the consequence of a misrepresentation is among the harshest in all of immigration law:

Anyone who obtains a benefit by fraud or by willfully misrepresenting a material fact is inadmissible — INA §212(a)(6)(C)(i).

In practice, this bar is usually permanent, requiring a difficult waiver. Working too soon on a tourist visa risks not just the current trip — it can mark your record forever. It’s the most underestimated risk of all.

The right paths

The good news is that there are doors built precisely for entrepreneurship — and using them is what separates the durable dream from the headache:

• E-2 (treaty investor) — INA §101(a)(15)(E): for those investing a “substantial” amount (no fixed figure in law). Depends on your country having a treaty with the U.S.
• E-1 (treaty trader) — for substantial and continuous international trade with the U.S.
• L-1 (intracompany transfer) — INA §101(a)(15)(L): moves an executive/manager from your company abroad into the U.S. operation.
• EB-5 (immigrant investor) — INA §203(b)(5): a green card through an investment of US$1,050,000 (or US$800,000 in a targeted area) creating at least 10 jobs.
• O-1 (extraordinary ability) — for founders with proven recognition in their field.
• International Entrepreneur Parole — 8 CFR 212.19: a parole (not a visa) for startup founders with qualified investment.

Forming the company from abroad

And what if you only want the structure ready, without living in the U.S. yet? That’s entirely legitimate and done remotely: state registration, a local registered agent, and the EIN (the American tax ID). Without a Social Security number, the foreigner requests the EIN like this:

On Form SS-4, line 7b, a responsible party with no SSN/ITIN writes “foreign”; the application is made by phone, fax, or mail — the IRS procedure for foreign responsible parties.

It’s the path for those who want to bill the American market from abroad, without touching any immigration rule — the safest arrangement of all.

Owning a company isn’t tax-exempt

A warning that catches many off guard: a foreign-owned LLC has tax obligations of its own, even with no local operation. A single-member LLC owned by a non-resident must file:

Form 5472 (with a pro-forma 1120) is required of foreign-owned entities, under penalty of US$25,000 — 26 U.S.C. §6038A.

Immigration and tax are separate tracks. Being clean on one doesn’t mean being clean on the other — and the penalty for forgetting the 5472 is steep. An American accountant isn’t a luxury here; it’s part of the plan.

So: help or hindrance?

The summary fits in one sentence: capital may cross the border freely; your labor may not. Owning an American digital company: free and safe. Forming the structure from abroad and billing at a distance: legitimate. Operating the company from inside the U.S. on a tourist visa: that’s where it hurts, and the price can be permanent.

Building a business in the U.S. isn’t the problem — doing it with the wrong status is. Pick the right door and the digital business becomes an asset, not a risk. The map beats the wall.

About the author

Victoria Harper

Editor-in-Chief

Meet the author

As a journalist and lead editor at Visto n’ Visa, Victoria helps ensure that immigration topics are covered in a clear, trustworthy, and easy-to-understand way. Her focus is on delivering useful, human, and relevant content for people exploring new paths abroad.