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I am currently on a student visa (F1) at a community college. About two years ago I was laid off from work. My former employer had filed for my H1B. After the lay off I did a change of status to be in status. I want to start business with an investor. I want to explore the opportunity of working for the business full time. I want to own the company and work for it.

P.S I want to know if I can start a company and sponsor my H1b to work for that company.

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So what is your question? I can't get any points from your statements. – kalingga Jul 13 '11 at 4:12
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Can you please include relevant information about what country you are wanting to start a business in (and where you are from if relevant). This is a global forum so the answers will really depend on this information. – Susan Jones Jul 14 '11 at 0:16
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@Susan Jones The question references a student visa (F1) and a employment visa of H1b -- these are US-based visa classifications. Based on this information the question is about someone seeking to stay in the US -- and thus start a business here. The US does have some unique Visa classifications for nationals from companies with which we have trade agreements -- but that level of specificity would best be dealt with with the context of a counsel/client relationship. – Joseph Barisonzi Jul 14 '11 at 4:14
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Thanks Joseph. I realised that the question is US-centric but wanted to make the point that people should respect that this is a global community. For instance I wouldn't post an Australian related tax question here without making it plain that I was operating in that context and explaining it for other readers who don't understand Australian tax law. Using jargon that only relates to one country and not being inclusive in the way you explain it comes across as a bit arrogant to me - plus it is not going to get the questioner the best answers. – Susan Jones Jul 14 '11 at 14:05
@Susan I didn't mean to be arrogant. I was under the impression that jargon like H1B and F1 are so US specific and popular among the folks here. I guess I was wrong. Anyways, I think I got my answers. This forum has educated me more than an immigration lawyer would. Thanks! – Sid Jul 14 '11 at 17:05
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7 Answers

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Based on the conditions of the visa you are in the US with, you can start a business. It is highly unlikly that you will be able to use that business to sponsor your H1b visa because you would not have the employer/employee relationship. As an equity owner you will be considered an owner receiving compensation rather than a pure employee. Your new business could sponsor a H1b visa-- just not yours.

Start-ups CAN become sponsoring business for a H1b visa. They have to meet all of the standard requirements of prevailing wage and such. They are put under additional scrutiny as to their viability. Proving that they have customers and sources of funds to secure the position of the HB1 visa holder. Depending on your total employment count, the start up also needs to ensure they don't become classified as HB1 dependent -- which triggers additional rules that make it difficult to hire the desired foreign national.

The bottom line is that the HB1 Visa is not intended to be a path to residency for an entrpreneur. Attempts to work around the system are rarely successful. Don't put your business, your clients, your family your friends and yourself at risk by not simply doing the right thing. (legal, legal intent)

It should also be noted that there is limited availability to the number of H1b visas, they are hard to get, and the window of availability is the days -- if not hours -- at the beginning of the 6 month period in which new slots are opened. It is rarely an effective strategy to staying in the country quick fast when other options have fallen through.

The fasted option will be the EB-5 Investor Visa. I wrote more about that above.

No matter what there is absolutly no way you can do any of this without the counsel of a qualified and experienced immigration attorney. Period. No exceptions. And they cost money.

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Thank you! Well, I did explore EB5 and my lawyer said its impossible looking at the size of the investment and the investment location. The lawyer told me to ask the investor to set up a company and hire me on H1B and the green card can be filed immediately. In that case, while I have the pending green card application, can I then own part of the company? – Sid Jul 14 '11 at 4:19
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I would re-look at the EB5 option. Check out my profile and contact me to discuss. As long as you have an equity stake in the company you will have a challenge making the case that you are an employee based on the USCIS definitions for a H1b visa. – Joseph Barisonzi Jul 14 '11 at 4:23
You response is not accurate. I can have an equity stake in a company and have no problems getting H-1b whatsoever. Example: I have several Google shares, so I own a (very small) part of the company. Will I have any problems with H-1b? I don't think so. Second, "the window of availability is the days -- if not hours" - this is simply incorrect. This situation was in 2008 and 2009, now it's changed. EB-5 requires substantial investment, I don't think that's an easy way for most people. – Salmon Apr 16 '12 at 19:44
up vote 3 down vote

Yes and no, you can start a business. This can be a C corporation as it allows for foreign ownership.

Take this time to educate yourself business ownership in the USA. There is a wealth of information online.You maybe an out-of-status non-immigrant according to US immigration laws, so there are repercussions for that.

Read up on; Investor Green card as well as Start-up Visa Act.

The investor Visa, requires having access significant capital to invest to start.

Hope this help you get started and good luck.

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The Investor Visas are the EB5 visas. They require a qualified investment in a qualified business. The qualified investment is either $1M or $500K. the qualified business is either located in a "Targeted Economic Area", in need of "saving" or sponsored by a USCIS Regional Center. In addition you will need about $50K in fees. You get a conditional Green Card in 30-90 days from I529 application. A I826 petition is filed within 24 months showing your investment created 10 sustained jobs. You get the conditionally lifted and you have a permanent Green Card. The startup Visa is still a dream. – Joseph Barisonzi Jul 14 '11 at 3:59
up vote 3 down vote

I was looking for an answer to the same question last September. I consulted an immigration attorney. Here are some points from my discussion that may help you.

  1. Most important rule of H1B visa - you can never do any 'work' for any other employer, that includes self employment, or even volunteer work for free while you are on an H1B (volunteering that matches your profile). So you cannot write a free iPhone App as well, technically its not allowed.

  2. I asked if I could start my business in India and work for that company from here part time. I wanted to do just administrative stuff and that is not legal on H1b too.

  3. If you have a partner just to start the company (who has a green card or is a citizen) and he hires you on H1B and gives you most of the equity, then the case will be under suspicion and it will be risky. Not sure how it will be if you have a minority stake.

  4. There is an entrepreneur/startup visa which is not approved yet, this will solve your problem when it gets passed.

  5. You can file your Green Card with NIW (National Interest Waiver). This basically means that you need to prove how the US as a country will benefit with you getting a green card. You could say you will create jobs for the economy but you need a thorough business plan and even then, this kind of reason is very rarely approved since its reserved for scientists and performers and religious leaders etc.

As for me, I decided to wait a few months to see the progress in green card date and fortunately I am current, so I will wait before I step out on my own.

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Good luck to you! – Sid Apr 13 '12 at 3:43
up vote 1 down vote

Speak with a qualified, and talented immigration attorney. I am not one, and am not pretending to be one, though I have some experience with the US Visa system.

From what I know, two important points:

First, it sounds like you are trying to hack the US Visa/legal system. DON'T HACK THE LEGAL SYSTEM. If you are a foreign national, you could go to jail/lose your status/get deported even if you talk about hacking it to anyone other than a lawyer you've retained specifically for this purpose, because intentions matter in the legal world and they don't always matter in ways you can predict. Generally speaking, even when not talking about visas (which have additional risks, since your rights as a non-citizen are very different) hacking legal systems is looked on badly and often is considered criminal behavior.

Second, as far as I know, there is no currently legal way to do exactly what you're asking. Your question is a bit shaky on the details, and the details matter, but not too much. Your best bet is to:

  • Work on your startup while living outside of the US.
  • Spend large amounts of time in the US on a visitors' visa when required to meet with investors, etc...
  • Grow the company to the point where either you have enough money to enter on an investors' visa, or the company is removed enough from you for it to have a credible employer/employee relationship (For example, if there's a board of directors which can hire/fire you)
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I am not trying to hack the system. I love and respect the system as it is. I am totally aware of the repercussions if I am at fault. My goal is to be a lawful citizen of US contributing actively to the community. I am no immigration lawyer like you so, I had few queries which I hoped to resolve at this platform. – Sid Jul 14 '11 at 16:45
up vote 1 down vote

Yesterday White House announced Initiatives to Promote Startup Enterprises and Spur Job Creation

To accommodate that, Employer-Employee Relationship section was updated to reflect Single Owner company, so self-sponsored H1B is possible.

But, there is a catch which is answered in the FAQ's as follows

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.

Now the challenges is to figure out how a single owner can have a board (or share holders) who can make hiring/firing decisions. I'm not aware of any corporate structure that will make this possible.

I would like to get others inputs on this new initiative.

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Thanks for the info, RXS! – Sid Aug 4 '11 at 4:03
up vote 1 down vote

As it's now clear that there is no straight forward way to file your own H1B visa for your own start-up, let me give you some more options you can look forward to in worst case scenario of not able to get any legal US visa.

  1. How about staying on a ship which is enough away from the coast of US that it is out of the US territory? Check out Blueseed. They plan to give space on a ship to people who are having issues like you to stay in US but want to work with start-ups in US. They will anchor the ship half an hour (12 miles) from Silicon Valley, in international waters outside the jurisdiction of the United States. You can legally earn an income working on your startup while on the Blueseed vessel regardless of your nationality, but you can't legally earn a paycheck while visiting the mainland, unless you have a US work visa or are a US permanent resident. There is a cost of course - you need to pay them the rent that ranges from $1200 to $3000 per month. I'm just suggesting another way to Sid - in my personal opinion this is playing around with the law but again they are not really breaking any US immigration/border law - Are they ? They are yet to launch, will be launching in around the end of 2013 I guess.

  2. Canada The closest good option to US is Canada. Advantages are - you will be in the same time zone as your US clients/investors/co-workers, you can make quick trips to US locations for important meetings/pitches/networking etc.

Hope this helps.

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This is by far the most innovative answers I have come across. Unfortunately, I have to be on land; I am not into software business. Thank you so much! – Sid Apr 20 '12 at 23:27
up vote 0 down vote

I'm no expert but.... This could change from country to country.... Also, that being said, being the owner of a business is different from working in the business. I don't think you can sponsor yourself (or have your partner do it). You'd most likely have to go through other channels with proof of capital etc. etc.

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