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Ask HN:Can I start a company on an H1B visa?

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Re: Ask HN:Can I start a company on an H1B visa?

#21

Post by acak »

avichal wrote: post #9

Background: I've hired many many people on H1B and helped friends on visas start businesses. TL;DR - In practice, this is very difficult to pull off. There are some chicken and egg issues that make it very difficult and the government is a pain in the ass about it too. The rule of thumbs are that you cannot control the business that is giving you a visa (you can be fired from the job), the company has to demonstrate…

One correction.

USCIS has updated the rules and clarified that a controlling interest in the company is allowed (i.e. > 50%) as long as the employee-employer relationship is maintained and a board of members exist who can control the employment and terms of the beneficiary.

http://www.washingtonpost.com/national/on-immigration-a-step...

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f...

Specifically (quote from the page on the second link):

Q: The memorandum provides an example of when a beneficiary, who is the sole owner of the petitioner, would not establish a valid employer-employee relationship. Are there any examples of when a beneficiary, who is the sole owner of the petitioner, may be able to establish a valid employer-employee relationship?

A. Yes. In footnotes 9 and 10 of the memorandum, USCIS indicates that while a corporation may be a separate legal entity from its stockholders or sole owner, it may be difficult for that corporation to establish the requisite employer-employee relationship for purposes of an H-1B petition. However, if the facts show that there is a right to control by the petitioner over the employment of the beneficiary, then a valid employer-employee relationship may be established. For example, if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary, the petitioner may be able to establish an employer-employee relationship with the beneficiary.

Re: Ask HN:Can I start a company on an H1B visa?

#22

Post by samstokes »

It's unclear whether the OP is asking "Can I found a US company and then move to the US to work on that company via the company applying for an H1B visa for me?", or "Can I, currently in the US on an H1B visa, start a new company and work for it?". I suspect the answer to the latter question is "no". The rest of this comment assumes the former question.

As others here have said, an H1B visa requires demonstrating that the company could fire you, which isn't usually true if you own it. In the case of Rapportive, we had 3 cofounders, all needing visas; 3 turns out to be the perfect number for H1B purposes, because any two of you own enough of the company to fire the third. That sounds a bit circular, but made enough sense to USCIS that we got our visas, even though none of us was a US citizen. (Not that it was easy, but our difficulties were more about convincing them we were a real company.)

Of course, this isn't legal advice, and you'll want a good immigration lawyer who can prepare the petition appropriately for this arrangement.

Re: Ask HN:Can I start a company on an H1B visa?

#23

Post by rglullis »

kijin wrote: post #16
avichal wrote: post #15

Earlier quoted context omitted.

Transferring an H1B to a company that the government thinks is legitimate is very straightforward. I was just hoping to outline the steps to getting a company considered legitimate. So if you can get your company off the ground and considered legitimate (the hard part) then you can have your visa transferred to that company (the easy part). There are certainly employment contract issues -- moonlighting clauses, non-s…

I think the point @karterk was trying to make is that it might be illegal for you to do any paid work at all at your own startup (or any other company other than your original employer), regardless of whether your original employer allows moonlighting or not. I'm not sure how H1B works in the U.S., but a lot of countries have rules like that attached to work visas. So until your visa has been transferred to your star…

There are more ways to get paid by a company than by being a salaried employee. And some of them are even legal.

Re: Ask HN:Can I start a company on an H1B visa?

#25

Post by avichal »

acak wrote: post #21
avichal wrote: post #9

Background: I've hired many many people on H1B and helped friends on visas start businesses. TL;DR - In practice, this is very difficult to pull off. There are some chicken and egg issues that make it very difficult and the government is a pain in the ass about it too. The rule of thumbs are that you cannot control the business that is giving you a visa (you can be fired from the job), the company has to demonstrate…

One correction. USCIS has updated the rules and clarified that a controlling interest in the company is allowed (i.e. > 50%) as long as the employee-employer relationship is maintained and a board of members exist who can control the employment and terms of the beneficiary. http://www.washingtonpost.com/national/on-immigration-a-step... http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f... Specifically (quo…

That's very interesting. Nice find. Definitely a step in the right direction

Re: Ask HN:Can I start a company on an H1B visa?

#26

Post by skillachie »

avichal wrote: post #9

Background: I've hired many many people on H1B and helped friends on visas start businesses. TL;DR - In practice, this is very difficult to pull off. There are some chicken and egg issues that make it very difficult and the government is a pain in the ass about it too. The rule of thumbs are that you cannot control the business that is giving you a visa (you can be fired from the job), the company has to demonstrate…

Avichal,

When you say start something on the side. Do you mean trying to get the web application up and running, possibly even, accepting payments from users , then look for a seed round ?

Re: Ask HN:Can I start a company on an H1B visa?

#27

Post by skillachie »

avichal wrote: post #15
karterk wrote: post #13

Earlier quoted context omitted.

The safest option is to try and start something on the side, get enough traction to be able to pull together a seed round, and then have that new company sponsor your h1b. However, from what I heard - if you're on H1B you can only work for the company that sponsored your visa. So, the "best option" itself is pretty dicey.

Transferring an H1B to a company that the government thinks is legitimate is very straightforward. I was just hoping to outline the steps to getting a company considered legitimate. So if you can get your company off the ground and considered legitimate (the hard part) then you can have your visa transferred to that company (the easy part). There are certainly employment contract issues -- moonlighting clauses, non-s…

"anyone building something on the side while employed full-time." -- but if your on a H1-B you will always be working full-time, atleast in my case.

if you are working full-time and building something that is not even remotely related to your current full-time job, do those contract issues still apply ?

Re: Ask HN:Can I start a company on an H1B visa?

#28

Post by kijin »

rglullis wrote: post #23
kijin wrote: post #16

Earlier quoted context omitted.

I think the point @karterk was trying to make is that it might be illegal for you to do any paid work at all at your own startup (or any other company other than your original employer), regardless of whether your original employer allows moonlighting or not. I'm not sure how H1B works in the U.S., but a lot of countries have rules like that attached to work visas. So until your visa has been transferred to your star…

There are more ways to get paid by a company than by being a salaried employee. And some of them are even legal.

Yes, but being an early-stage startup would limit your options.

Re: Ask HN:Can I start a company on an H1B visa?

#29

Post by sbansal »

Thanks for all the comments. Really helpful.Just to give some more background, I am currently working on an H1B and looking for ways with another partner who is a US Citizen. He would own a majority stake between 60%-70% and thus has the controlling stake.

Re: Ask HN:Can I start a company on an H1B visa?

#30

Post by deepGem »

karterk wrote: post #13
avichal wrote: post #9

Background: I've hired many many people on H1B and helped friends on visas start businesses. TL;DR - In practice, this is very difficult to pull off. There are some chicken and egg issues that make it very difficult and the government is a pain in the ass about it too. The rule of thumbs are that you cannot control the business that is giving you a visa (you can be fired from the job), the company has to demonstrate…

The safest option is to try and start something on the side, get enough traction to be able to pull together a seed round, and then have that new company sponsor your h1b. However, from what I heard - if you're on H1B you can only work for the company that sponsored your visa. So, the "best option" itself is pretty dicey.

As far as I know, while on a H1B, you can definitely start something on the side, but you can't get a salary for this activity legally. So as long as you are just coding and developing an app, for example is perfectly fine. This can be your 'hobby' and if this 'hobby' gets good traction and you want to convert it to a company then you'll run into all the legal issues pointed here. However, by then if you can convince investors and raise money with a board of directors you are in good shape.

I'm not an immigration lawyer, so those guys will give you the best advice. Please consult one.

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