
Updated US immigration rules: H1-B can work for own company - limist
http://www.washingtonpost.com/national/on-immigration-a-step-in-the-right-direction/2011/08/03/gIQA2bGgsI_story.html
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tejaswiy
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
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...

~~~
SoftwareMaven
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.

~~~
alexro
You probably don't have a family in the US if you come on H1B, but
nonetheless, someone trustworthy can serve the board...

Say, YC or other incubator can form a board that will formally control the
founders but in reality it's in the incubator's best interest to let the
founders do their thing

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jisaacstone
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
Did you reply to it?

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keeptrying
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.

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

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goatforce5
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
I was under the impression that the E3 had an attached dependent visa already:
<http://canberra.usembassy.gov/e3visa/dependents.html>

~~~
goatforce5
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.

~~~
deskamess
I am not sure why your E3 partner would be able to work if they cannot
today... Partners of H1B's have H4 status and are not allowed to work. Of
course, they can file for H1B, but could not a spouse of an E3 file for an H1B
(or E3) today?

~~~
goatforce5
Married opposite-sex partners of E3 holders can work today under an E3D visa.

The point I was trying to make is that the E3 is possibly a better option than
a H1B for any Australians interested in working in the US.

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flanther
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.

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zmitri
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.

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trustfundbaby
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

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Hexarcos
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.

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ed209
is that really the problem? Surely the difficulty of getting a h1-b visa in
the first place is more of a problem?

~~~
ojbyrne
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
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.

~~~
durandal1
Yes, my petition missed the 2011 cap by two days (think the cap was reached on
January 27), so as for the parent poster my start date was pushed to October.

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shad0wfax
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?).

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shahidhussain
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.

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endac
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!:)

~~~
vidarh
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).

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sprovoost
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.

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jhuckestein
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 ...

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nickthedart
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!

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cibot
"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.

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akat
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?

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

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

~~~
untog
Do those actually exist? I've never heard of someone being able to hold
simultaneous H1B visas.

~~~
akat
Yes, its possible.

www.h1b1.com/concurrent.htm www.h1bplanet.com/h1b-part-time-concurrent.php
etc.

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fatbat
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.

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tomjen3
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.

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eugenejen
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.

~~~
untog
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.

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

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vynch
a) Although I agree it is a gray area,the USCIS is probably not going to come
after you for "working" for your company for free while you waited for the
H1-B approval.

b) Noone has to know.

c) Although different apporaches exist,my opinion is that you should have
probably already made something that a lot of people use even before you talk
to the VCs.By doing this you were working for your company without an H1B.But
this issue can be solved if you refer to point - B above.

~~~
untog
"Noone has to know"

Except the investors, who would realise immediately. It's all very well to say
that USCIS "shouldn't" and "probably won't" do things, but:

1) That doesn't reassure me much. I don't want to be deported.

2) That shouldn't reassure an investor much, either. If they realise you are
going against immigration law they might run from your company at sprinting
pace once they realise the founder could be deported.

I want these kind of changes because I _want_ to be legitimate.

~~~
vynch
Yes I do agree with your points.It would have been a lot easier to get funded
if you were a citizen.

-But at least now the dream is POSSIBLE as opposed to IMPOSSIBLE.

-You have to make up for these shortcomings by making something that much more awesome.

-And lastly if a VC is not willing to take this simple risk,maybe he should drop the letter V from his designation.

~~~
fredoliveira
I am quite close to a lot of deals and I can definitely say that most people
who are considered a-list investors today are both:

a) willing to invest in someone who is waiting for a visa

b) willing to use their contact network to get their investment secured with a
visa for the founders. I've seen this happen multiple times - good lawyers
pulled into the deal to expedite visa issues.

It is in the investor's best interest.

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daveying99
Does that also apply to TN visas (kind of like an H1B for Canadians)?

~~~
cambriaone
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.

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Hisoka
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?

~~~
websymphony
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.

~~~
untog
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.

~~~
websymphony
You are correct with that scenario.

But also, now you are able to create a company that is profitable from day
one, and might not need any external funding for a long time. At least the
opportunity is there to create something.

Not all companies need investing. :)

