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Ask HN: The curse of the green card: entrepreneurship for immigrants?

18 points by stevesmith155 471 days ago | 18 comments

Background: I am from India. I have a PhD in engineering (Berkeley) and a steady full time job at a tech company in the valley. I work on an H1B visa and my green card application has been filed (EB2, pending AOS, received EAD).

Problem: I’ve been hacking at a startup concept for a few months now. We (my "co-founders" are also immigrants) are now at a point where we have a well functioning product and eager customers. The only thing that is preventing us from going live is incorporation (which gives us the ability to accept payments, liability protection, IP, etc). Being temporary immigrant workers on an H1B we can incorporate and "own" a company ... but CANNOT WORK for it.

o How do immigrants handle such a quandary?

o Yes, I can own a large % of equity, but I can’t write a single line of code... because that would technically be "working" for the company and could increase the value of my equity

o Some say "find someone (e.g. US citizen) to run the company for you". How does one entrust the running of a whole company to someone else while being a passive shareholder? Remember, if I send a single email to one of our customers, I’d be "working" and violating my H1B

o With the expected green card wait time of 3-5 years for an Indian citizen, I am getting frustrated by the day. Does anyone else here share my frustration? How do you deal with it?

Private comments to s t e v e s m i t h 1 5 5 @ g m a i l . c o m

12 points by DaniFong 471 days ago | link

Hi Steve Smith,

There is a little known visa known as an O1, for 'extraordinary persons'. This is the visa that many foreign founders obtain. One is allowed to found and work for a company in the US while one is on it. I think they last 3 years.

Generally, PhD level people can obtain it, though it is a pain to do so. I have heard of people straining to get 10 eminent people to write supporting letters for one's visa petition. A good link is here:

http://www.hooyou.com/o-1/faq.html

There's a fairly extensive list of what may be accepted as supporting documentation there. I think these are the criteria the government uses:

Receipt of a major, internationally recognized award, such as the Nobel Prize; or at least three of the following forms of documentation: (1) Documentation of the alien's receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor; (2) Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields; (3) Published material in professional or major trade publications or major media about the alien, relating to the alien's work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation; (4) Evidence of the alien's participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought; (5) Evidence of the alien's original scientific, scholarly, or business-related contributions of major significance in the field; (6) Evidence of the alien's authorship of scholarly articles in the field, in professional journals, or other major media; (7) Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation; (8) Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.

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2 points by stevesmith155 471 days ago | link

Thanks Dani. I am aware of the O-1 visa. However wait times are about 1-2 years to get it (the same as an EB1 green card). I think I might have a case with my background. Thanks anyway!

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3 points by DaniFong 471 days ago | link

Hmm. It says here that "The O-1 petition and approval process takes approximately 3 to 4 months. U-M can submit an O-1 up to 6 months before the intended start date. If needed, USCIS offers an option for expediting O-1 petitions called “premium processing.” There is a special fee for this service in addition to the normal USCIS filing fee."

http://www.internationalcenter.umich.edu/immig/ovisa/

So it's more like 3-4 months, and if you need it quickly you can expedite it.

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9 points by louislouis 471 days ago | link

1.Incorporate the company in US. 2.Incorporate another company in India. 3.Outsource work from US company to Indian company. 4.Indian company hires contractor (you) in the US.

Is something like that possible? I'm just guessing really.

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6 points by gojomo 471 days ago | link

Previous threads:

http://news.ycombinator.com/item?id=115590

http://news.ycombinator.com/item?id=67268

Maybe you can technically work for your US company from some overseas office, but be in-country for nearly 3-6 months a year on temporary visas?

Or maybe a real expert can set up legal structures such that you're moonlighting for a foreign corporation, instead of a domestic company other than your H1B sponsor. (I have no idea if that's as serious an issue as moonlighting for your own US-based company.)

Definitely get expert legal advice rather than trusting a comment thread.

And on behalf of all reasonable USicans, I apologize for our stupid immigration restrictions.

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5 points by Dilpil 471 days ago | link

You could move back to India and run the buisness from there.

...yeah our immigration policies are pretty bad aren't they.

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4 points by yummyfajitas 471 days ago | link

Our immigration policies do suck, but doing it from India isn't a bad idea at all. Low living costs + same amount of money = longer runway, employees are cheaper, he gets all the purported benefits of outsourcing.

Plus, stevesmith has plenty of local knowledge (being Indian), so he can avoid most of the pitfalls of outsourcing.

Seriously, give it some thought. Once you get rich, immigration to the US should be no problem.

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4 points by stevesmith155 471 days ago | link

I agree there is an advantage in moving back to India. However these things are never easy (wife, house, assets, etc).

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3 points by comatose_kid 471 days ago | link

I thought that an EAD holder could own a company. Is this not correct? I just received mine, and it supercedes my existing TN visa.

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3 points by stevesmith155 471 days ago | link

For employment based green cards (EBx) the applicant may use his/her EAD to work in a job that is similar to the petitioners I140 case (this is known as AC21). I can't go from Design Engineer on my H1B to CEO on my EAD :(

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3 points by waleedka 471 days ago | link

Set your title as Chief Design Engineer on your incorporation documents. In practice, no one will probably bother to check, and even if they do, they'll go by what the title is on paper. The reality is, you'll be doing mostly programming work in your company and you have EAD, so you're set. This sounds like a good setup from how understand it, but double check with an attorney. If you need referral to a good immigration attorney, drop me a line.

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1 point by comatose_kid 471 days ago | link

Right, of course; in my case, I've got an EAD through my wife's company, so I've probably got more latitude than yourself.

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3 points by run4yourlives 471 days ago | link

I know nothing regarding US immigration law, but what do they define as "working"? In other words, could you contribute for "free" and just pay yourself via dividends?

Otherwise, why don't you just incorporate in India, or wherever else is applicable? If you're going to sell via web payments, nobody really cares where you are. There may be a few issues with corporate clients, but for 95% of people it would be seamless.

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2 points by jwilliams 471 days ago | link

For anyone interested, this infographic isn't a bad summary resource: http://www.reason.com/images/07cf533ddb1d06350cf1ddb5942ef5a...

It summaries the various processes to become a citizen...

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2 points by white 471 days ago | link

Not a lawyer, so don't take my advises as is. Incorporate in India, then transfer it all to US when you're ready. Develop the code yourself, then have code acquired by your company, or prepare letter of intentions (that when you can do this legally, the code will be owned by the company for your stake increase). And my understanding is that they don't care that much of you writing code for company either paid or free. The government doesn't want everyone to create their own companies and get employed by themselves, getting legal status in US because of this. Your case looks different though.

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1 point by jhancock 471 days ago | link

As to intellectual property, I would have an offshore entity (Cyamans, BVI) hold everything until an investor makes you restructure it into something else. Then a simple piece of paper signed by all people developing the IP assigns ownership to this offshore entity. For onshore operating, you simply license the IP to your U.S. entity for a small fee. You can get away with this approach for quite a bit.

There is no good answer for how you maintain visas once you quit you day jobs. This part sucks. One "straightforward" option may be to strike a partnership with an IT outsourcing company that manages employees in the U.S. from India and give them a small piece of the company for handling your employment. You may find that such a partnership would work well as such an entity is an automatic HR and accounting department for your growing entity. You focus on creating a great product and your partner focuses on the housekeeping.

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1 point by unohoo 471 days ago | link

I think Loic (seesmic founder) had a post on a similar topic, a while back -- ie, when he moved from france to the bay area to start seesmic.

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1 point by joubert 471 days ago | link

You could incorporate in another jurisdiction?

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