Updated US immigration rules: H1-B can work for own company

http://www.washingtonpost.com/national/on-immigration-a-step-in-the-right-direction/2011/08/03/gIQA2bGgsI_story.html

by limist • 15 years ago

322 91 15 years ago

keeptrying3• 15 years ago

I saw 5 years of my life flash before my eyes when I read this.

This AWESOME news. I got my GC a year ago and I quit 3 montsh ago to start something so it doesnt matter now but I would've killed for this 5 years ago.

vynch5• 15 years ago

Repeat after me..."It is never too late to be awesome"

tejaswiy3• 15 years ago

Wait, are they saying I can create a company on my own, no holds attached and go work for it? (minimum investment etc.)

A few questions - does it let me build apps and publish them to the Appstore to make money? (Since that doesn't count as working fulltime for the company I assume).

How do they prevent Masters students who are on an OPT from creating their own companies and sponsoring a H1B for themselves? No regulations on the amount of investment required?

If both of the above are possible .. well, mind=blown.

lutorm• 15 years ago

No, they are not saying that:

"... business owners on H1-B visas could work for their own companies, provided that they work full time for the company and are treated like an employee. For example, the company could have a board that is able to hire, fire, pay, supervise or otherwise control the worker like they would any other staff member."

I don't know how many startups have a board that can fire the founders...

alexro2• 15 years ago

Is just paying a salary to yourself for the full-day duties not enough to count you as a 'normal employee'? How they could ever envisioned business owners being equal to other employees?

SoftwareMaven• 15 years ago

I wonder if there are rules around the board. Could I make the board with my family? Sure, I could be fired, but it isn't likely.

Sad that Washington is so useless that even something as straightforward as "let really smart, educated, financed people in the country to start businesses that hire other people" is controversial.

tejaswiy3• 15 years ago

Well, that's still okay. I guess this is one thing that they can't change without government regulation. So like @SoftwareMaven says, what if I can get friends or family on my board? Do I have to be paid whatever the min wage for H1Bs is? (I think it's 45k / year or something).

patrickgzill• 15 years ago

My understanding is, there are companies that will handle all the corporate paperwork for you, including supplying board members. DYODD however, IANAL, etc.

gaius2• 15 years ago

Isn't that what happened to the other PG, Phillip Greenspun?

jacoblyles• 15 years ago

I know a few founders who employ themselves under H1-B while also taking all the board seats, but they did this before August. I wonder if this would still fly.

startupcto• 15 years ago

It just means that you have to be venture-backed. But overall, this is still really good for the economy in general to try to get more entrepreneurs to first leaping from their comfort zone ( full time job ).

peteretep• 15 years ago

That was my hope too, but it seems to say you need to already be working under an H1B visa.

ojbyrne2• 15 years ago

As an H1B you still have to be paid market rate, and the company has to have enough cash to be viable. That implies a certain level of minimum investment.

aherlambang• 15 years ago

I want to quote on this statement as I am on the same situation:

"How do they prevent Masters students who are on an OPT from creating their own companies and sponsoring a H1B for themselves?"

With this new regulation is it possible if I start my own company with other US Citizen if I am on OPT?

vynch5• 15 years ago

The masters students must have sufficient funding too.

trustfundbaby9• 15 years ago

Yes ... you could get them as a cofounder (probably give them controlling shares) and then apply ... but the trouble is showing that your wages could be paid. You might have to get some capital invested or use savings.

stmartin• 15 years ago

keep dreaming

endac• 15 years ago

So if I, an Irish citizen, founded a company with Americans employed or on the board I can apply to stay beyond my holiday visa? Will be pitching like mad at YC NYC if this is the case!:)

bahman2000• 15 years ago

I don't think your holiday visa is H1-B. This deal is for existing H1-B visa holders.

pbiggar• 15 years ago

Not exactly, but broadly yes. You have to go back to Ireland to trigger your H1B. (Also, and I think you aren't suggesting this, but never ever ever overstay your holiday visa, or you'll be banned from getting a US visa for 3-10 years).

vidarh• 15 years ago

Careful. There's a wide range of activities you're not allowed to take part in on a holiday/tourist visa, and so you want to make very sure that there's no appearance that you did business in the US (such as work on a startup) while in the US as a tourist.

Meetings are ok, AFAIK, as long as they are not for productive work, with some further caveats. Not that I want to dissuade you from pitching, but be careful there's nothing there to give the wrong impressions if/when you do decide to apply for a H1B.0

Not a lawyer, but I did get extensive coaching from an expensive immigration lawyer a few years back on what I could do (and how to describe it to US immigrations) while in the US, as I was traveling over every 2 months for meetings while we applied for a H1B, because immigrations understandably started asking more pointed questions when they saw my passport was full of stamps from the same US airport (never had a problem and they were always courteous, just probing more about my reasons for coming).

ed2093• 15 years ago

is that really the problem? Surely the difficulty of getting a h1-b visa in the first place is more of a problem?

ojbyrne2• 15 years ago

It's not as hard to get an H1B as it has been, because the yearly quota isn't being used up. You still have to be paid market rate, go throuh the labor certification, pay legal and INS fees, etc.

neuromage• 15 years ago

I'm not sure about that. The H1B quota for FY 2010/2011 was exhausted sometime in Feb this year I think. Because of this, my application was pushed to FY 2011/2012, so I can only start work in Oct. So I think the quota is being used up. Or at least it was, this year.

ed2093• 15 years ago

The number one reason why I'm not getting considered for positions in the US is because I have to get a visa. I don't think I would have any problems qualifying, but the hassle for the employer seems too much. That's what they need to change.

tejaswiy3• 15 years ago

For a lot of people already in the US, yes!

ed2093• 15 years ago

That means that the US is betting it's future on people already in the US. Surely they need to continue to attract the best people from all over the world?

keeptrying3• 15 years ago

The number of people applying for the H1B for the last two years is LESS than the number of H1-B vacancies available. People just dont want to come to the US anymore at least not skilled workers from India and China like they used to.

gaius2• 15 years ago

An alternate interpretation is that the H1B quota is simply artifically high. http://www.cs.ucdavis.edu/~matloff/h1b.html

Hexarcos• 15 years ago

Great news that just made my day! But I dont really understand the details of this: Are they asking people to found start a business and give the total control (in term of decision making) of it to someone else ? The whole point of starting a business (to me at least) is to have the ability to build your idea, make it grow and share your vision to the world. Am i missing something ?? Anyway, this is still a very important step for us, foreigners.

flanther• 15 years ago

H1B requires that the employee satisfies a minimum wage set by the Labor department (varies per state). So if someone on H1B wants to start their own startup with Americans (or existing green card holders?) on their board, will they have to be paid more than that minimum wage right from the beginning? That would need a higher investment to start with. What if the company wants to bootstrap rather than raise money from VC's? Also, would that mean that the person on H1B cannot own a majority stake in his/her own company (given the condition that the board should be able to fire him/her)? I think the changes outlined are open to wide angles of interpretation both by USCIS and the startups that want to 'hire' the founder(s) on H1B.

shahidhussain• 15 years ago

This is massive news. I met Vinod in SF when I was leaving the bay area, partly for visa reasons. Now it seems I can return with a company of my own, if it's set up the right way.

However, having spent 6 months fighting USCIS, I'm a little sceptical about it translating well into practice.

goatforce53• 15 years ago

Note for Australians: These tweaks to the rules almost certainly apply to E3 visas, which would allow you to go to the States with your opposite-sex married partner, and they'd then be allowed to work in any job without further approval from the federal government.

(Through an odd quirk of a US immigration directive, it also allows you to take your non-US same sex partner to the States, but they aren't allowed to work in any capacity. It must be about the only place where US immigration recognizes same-sex relationships.)

praxxis• 15 years ago

I was under the impression that the E3 had an attached dependent visa already: http://canberra.usembassy.gov/e3visa/dependents.html

goatforce53• 15 years ago

Yes, they do. The point I was trying to make was that I imagine that the new directive on the H1B's allowing them to be used by startup-y people would probably apply to E3's too.

ie, Go to the US to work for your business, and take your partner along who'd be able to work wherever they'd please.

jisaacstone• 15 years ago

Here is what I hate - a top-rated comment with 22 'recommends' and no dissenting replies:

"boblesch wrote: the immagration fix is so simple

institute a $1 million fine for every occurrence of employing an illegal. no excuses, no exemptions, no exceptions, no pardons.

the illegal immigration problem will DISAPPEAR the day the first fine is assessed."

This has nothing to do with the issues in the articles and detracts from meaningful change. The primary and pressing immigration issues in the USA have nothing to do with 'illegals' but any attempt to talk about it is quickly derailed into a pro- or anti-illegal debate.

I get so angry sometimes . . .

msie• 15 years ago

Did you reply to it?

zmitri• 15 years ago

You basically need 400K to 500K investment and need to be paid at least 60K in NYC. I've spoken with a well known startup immigration lawyer about it.

jhuckestein• 15 years ago

Great news. I think for the H1B category, the biggest improvement is that you can now point at a document and say "According to this document, my application is legal".

The bigger news really is the EB2 for entrepreneurs, but it remains to be seen how many companies qualify to be in the nation's best interest ...

eugenejen• 15 years ago

I hope this happens 10 years ago. But congratulation to all H-1B hacker news readers. You now can do something amazing without worrying about your visa.

untog8• 15 years ago

Unfortunately, not really true. The real strength for natives is that they can spin up a company on their own time- create a product and throw it out there. If it works- great- quit your day job and go to your startup. If it doesn't, no big deal- you still have your full time job.

Us H1B-ers are still tied down. I'd have to transfer my visa to my new, fledgling company. If it fails, I have to leave the country.

vynch5• 15 years ago

yes but at least now you can actively seek venture capital!!

trustfundbaby9• 15 years ago

Us H1B-ers are still tied down. I'd have to transfer my visa to my new, fledgling company. If it fails, I have to leave the country.

-------------------------

that is incorrect. If it fails, your original h1b remains intact

tomjen3• 15 years ago

Hmm this isn't bad, but I really hope it doesn't prevent real actual change (I seem to recall someone running on that slogan) so that one can get to the US and actually contribute something.

daveying99• 15 years ago

Does that also apply to TN visas (kind of like an H1B for Canadians)?

cambriaone• 15 years ago

The document makes no mention of TN visas, no. TNs are significantly different from H1-Bs: they are not a dual-intent visa, they are a temporary work permit.

sprovoost• 15 years ago

Definitely a step in the right direction, but I think they should just turn the Bay Area into a Special Administrative Region similar to what Hong Kong is to China.

Hisoka• 15 years ago

Wait a minute, I got a question I hope people can clear up for me... because I see a huge elephant in the room.

So they're saying if you have a H1-B visa, you can work for your own company full-time.

But.. umm.. if you have a H1-B visa, that means you probably got it from your current employer whether it's Google or Goldman Sachs. That uh.. means you're already working for them full-time, and if you quit, then your visa is gone! And now the rule doesn't apply to you anymore.

Am I missing something here?

checoivan• 15 years ago

An H1b can be transferred so you can switch companies with it.

aquayellow2• 15 years ago

I came here exactly with the same question! To build my company from ground up, I need to work for it. But how can I do that if I am already working full time for my current employer ?

trustfundbaby9• 15 years ago

you can file to be a part time h1b employee.

websymphony2• 15 years ago

Well the way I understand it. That's how it should work. You keep working on your existing H1b for Google or whatever, start your own company. Give yourself a job in your company, joining to which depends upon the new H1B that you will apply for. And once it is approved, you can quit your previous job and hence the previous H1B. Correct me, if am totally off on this.

untog8• 15 years ago

I think you're right, but it still complicates things. You'd basically have to set up a company, then not do anything with it for a number of months.

This is exactly the kind of thing that could make investors very wary.

xyz2010• 15 years ago

What does "treated as an employee" mean though? That's presumably intended to prevent people from just starting a one-person company employing themselves.

fatbat2• 15 years ago

So all the filing/lawyer fees would be paid by yourself for the transfer since it is your own company now? Between that and the prevailing wage req, I still see quite a high bar. :\

akat4• 15 years ago

I am excited but I am really curious about how I can bootstrap my startup while working for a big Co. on H1B. Is it possible with these "updated rules"?

EDIT - the "full time" sounds like a major hurdle for those who want to bootstrap. Am I correct?

untog8• 15 years ago

Absolutely. You're still constrained to one job at a time, so sadly this isn't very big news at all.

akat4• 15 years ago

I wonder if these updated rules apply for "parallel H1" where the second H1 can be for a part time job

shad0wfax2• 15 years ago

I agree. It just clears the air up whether i can create and work for my own. The other part that I feel is impeding is the minimum wage requirement. Its hard to pay myself 45k (or whatever is the min wage).

trustfundbaby9• 15 years ago

I posted about this when it was announced http://news.ycombinator.com/item?id=2838357 and there are a couple of links in there that should help clear up some confusion ... notably this one ... http://j.mp/nFD0xQ (link was real ugly, forgive me for using a shortener)

I was initially very happy about the announcement, but I think the employee-employer restriction is a trojan horse that really hacks the legs off from under the initiative.

here's the paragraph in question

> 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.

I see why they did it (CYA) but I think its kind of silly and counterproductive. I mean, you're trying to enable entrepreneurship but you want someone in the mix who is able to control them ... sigh

shad0wfax2• 15 years ago

This is great and expected news for the last few weeks, but is it true that you need to be employed with minimum wage? That sucks! If I want to startup, I have to definitely go full time now and there is no way I can pay myself that wage. They need to relax this rule, if they want to really support startups.

This is my 8th year here in USA and I have a green card being processed. I have decided to give it all up, move to India to start working on my idea for a year and come back here next year as a dependent (my spouse would continue to remain here). If this rule allows me to create my own startup without the wage rule, I should be able to remain here on my own H1 and possibly continue my green card as well (or does anyone know how it works in this case?).

fatbat2• 15 years ago

Question to all hackers: How can H1B visa holders now effectively utilize this new ruling?

- Assuming no source funding yet. - I already read all the suggestions posted here but alot of questions still go unanswered.

nickthedart• 15 years ago

Interesting. Does this mean that people who want to come to the US as a contractor could now bypass the "body shops" by creating their own "body shop"? This would mean that you have almost the same employment rights as a US citizen so long as you own a body shop company that employs yourself!

cibot• 15 years ago

"How do they prevent Masters students who are on an OPT from creating their own companies and sponsoring a H1B for themselves? No regulations on the amount of investment required?"

Why prevent masters students from creating their own company if that creates more jobs and will probably help the economy.

Updated US immigration rules: H1-B can work for own company

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