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up vote 4 down vote favorite

I have been itching to do a startup since a long time but this visa (H1-B) is getting forever to sort out (6+ years already)

One idea to work around the H1B issue is as follows -

  • I transfer my H1 to Company A (existing consulting company)
  • I setup Company B
  • I am not allowed to work for this Company B because company A holds my H1B
  • Company A lends my services to Company B, invoices and gets paid by Company B
  • Company B uses my services to build whatever I want to build and then some consulting at companies x, y, z (to bring cash in and pay back company A)

Assuming that Company A is OK with this, is this possible?

Can I consult for my own company through a consulting company holding my H1B?

(Least interested in pro/anti H1B flame wars or discussions around how the immigration process is broken/not broken. Strictly looking for ideas/thoughts around what could be done, given my situation. )

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Good call on calling off the H1B flame wars and the general immigration process! – Joseph Barisonzi Mar 31 '11 at 14:56

3 Answers

up vote 5 down vote

Two separate issues here:

Is this "kosher"? No. It's not. Any immigration officer will smell this a mile away. I don't want to add more flames, but these kind of "consultancy/consulting lending" exploits are well known to the USCIS.

And why isn't this Kosher? Becuase of your true intention. Bona-Fide employment, which is a pillar requirement of the H1B program means a "traditional" employment situation. Company A attaining the services of employee A1 who wants to work there and will indeed work there if hired. Your real intention, as stated here, is to find a loophole in the law that allows you to start your own company and remain "technically legal" under the law. Even if this is a legal loophole, you are violating the "Bona Find Employment" rule, and any immigration officer has the power to stop that show. They don't have to prove a thing. This is not a court of law. If they think you're not bona-fida - they will take you down.

Now the other question is, Will you get caught and pay the price? Probably not. But if you do, you personally may pay a price (visa cancellation, which means you have to leave the U.S. in 30 days). The company that lent itself to this "trick" may lose its Bona-Fide visa sponsor status and be prevented from future sponsorships.

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If he didn't want to get caught -- he probably shouldn't have posted his intentions on an internet board. . . . just saying. – Joseph Barisonzi Apr 1 '11 at 16:33
up vote 3 down vote

I had once discussed the same with a lawyer and it seems you can do this - he suggested you file for a "C Company" I don't really know what that means, but he stated that one need not be a citizen or even physically present in the country to file for such a company. One could then sell his/her services under that company.

However, to stay in the country you'll need to have a valid visa so hold on to your H1B in the meanwhile and burn the midnight oil for running your startup and follow on what @Joseph suggested.

Hope this helps.

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up vote 3 down vote

Thank goodness there is legislation in Congress right now to cover this particular issue -- in the meantime have you explored the use of an EB-5 Visa for this? Assuming you have access to the financial resources --You could invest USD 1M in your own start-up company and get your conditional Green Card in 60-90 days. Start working to build the value of the investment. Create 10 jobs within 2 years, have the conditionals of your Green Card removed. Apply for citizenship. Sell the 1M USD investment.

It is a little more complicated than that -- and there are a variety of associated options -- but that is the general framework.

In this model you would be working within the intent and spirit of the law rather than trying to get around it with all the risks that entails.

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can you post some links to ongoing legislation here? thx – Henry the Hengineer Apr 1 '11 at 5:05
How does the EB-5 work, in broad terms? Does the foreign entity have demonstrate >=$1M worth of payments to US persons, or create an entity - some corporation, in other words - in the US that attracts >=$1M investment? – Nicko Apr 1 '11 at 16:16
A foreign individual makes either a $1M/$500K at-risk investment in a qualified US business. They (and their family) receive a conditional Green Card(s). In 24 months they file a petition documenting that the investment resulted in the hiring of 10 full time permanent jobs. When the petition is approved an unconditional permanent Green Card is issued. The $1M can be for any business and the jobs must be direct. The $500K must be associated with a business sponsored by an approved Regional Center. (There is a third option not relevant to this discussion) Contact me for more information. – Joseph Barisonzi Apr 1 '11 at 16:28
The new legislation I referenced is commonly called the "Start-up Visa" Links on the new legislation: Sen. Kerry's Press release: goo.gl/lTnd2 A bloggers explanation of the bill: goo.gl/ornQ1 An overview from an international site: goo.gl/ox47v – Joseph Barisonzi Apr 1 '11 at 16:32

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