
Ask HN: How do I legally run a startup in US while on an F1 or H1B visa? - datacog
I am working on a startup idea and have received an interview call from an accelerator and very likely to get in. The problem is that I am currently working on F1 (opt ext) and will file for H1B this April. My visa statuses do not allow me to dedicatedly run a startup. Is there any separate visa I could file or any other way I could do this? Suggestions will be greatly appreciated
======
grumpyoldhacker
You can't.

These visa categories have been specifically engineered to prevent you from
working outside of your original job. Trust me, you do NOT want to screw with
Immigration.

I'd been on J1/H1B/pre-Green-Card-waiting-list for a total of 10 years, so I
had a lot of time to think about this.

Best shot if you are in an insane hurry: Marry a US citizen and really mean
it. So better stop hacking in the evenings and go out. Start an interesting
hobby. Get a hair cut. Read good books. Make friends that are NOT hackers. Get
a tan. Eat good food. Smile at members of your preferred opposite gender and
get super-comfortable talking to them.

Do NOT think about get-rich-quick-start-up ideas, it will only drive you mad
if you can't actually start them up. Nobody wants to hang out with a person
torn by the realization that they are in an impossible situation.

Enjoy the ride. You are young, bright and you work in an amazing field while
living in a (presumably) fascinating place.

~~~
cylinder
Ridiculous post. OP has options other than marriage.

~~~
eshvk
Depends on where OP was born really and how many degrees he has. The
employment based Green card process is terrible if you were born in China or
India, or don't have a Masters degree. Otherwise, it is not that complicated.
There are enough folks who get a permanent residentship through work in a
couple of years. Also, the green card lottery is an option that everyone (who
is eligible) should try for.

------
vowelless
Stay in OPT as long as you can. You get more flexibility that way. Try getting
the 17 month (I think) extension.

If you are on an H1B, you need to get a US person co-founder and have them
'sponsor' you. Be wary about the start up failing because as soon as the
sponsor breaks their contract, you will be out of status [1]. This means you
may have to leave the country immediately.

The E5 visa [2] is the best alternative. If you can secure funding of around
$500,000, you get the right to live and work in the US almost as a US person.
You can work for yourself, travel in and out of the country as you wish, etc.

[1]
[http://www.klaskolaw.com/articles.php?action=view&id=8](http://www.klaskolaw.com/articles.php?action=view&id=8)

> Terminated H-1B employees should be aware that time is not on their side. If
> the employee has plans to have another H-1B petition filed on his or her
> behalf, or to change to another nonimmigrant status, those plans should be
> implemented as quickly as possible.

[2]
[http://en.wikipedia.org/wiki/EB-5_visa](http://en.wikipedia.org/wiki/EB-5_visa)

~~~
eshvk
> Stay in OPT as long as you can. You get more flexibility that way. Try
> getting the 17 month (I think) extension.

You need to start working at a company with no more than total 90 days of
unemployment between jobs. Also, the 17 month extension works only if the
company is enrolled in everify.

~~~
sanchitarora
The e-verify process is very easy and if you have incorporated your startup
you can go ahead and do the e-verification yourself. Keep in mind that you are
employee of your own company, so as long as the company is registered you
should not have the 90 day unemployment problem.

~~~
read
I can confirm a friend incorporated and did the e-verification themselves and
indeed did not have the 90 day unemployment problem.

------
codegeek
IANAL but based on experience, in general you can legally "own" a
company/startup while on F1/H1B but you cannot "run" it. However, USCIS has
come up with an explanation of "Employer-Employee relationship [0]" which is
worth looking into if on H1B. The Requirement 1 is interesting:

    
    
        + How do I demonstrate an employer-employee relationship   if I own my own company? 
        If you own your company you may be able to demonstrate  that an employer-employee relationship exists if the control  of your work is exercised by others.  For example, if your company has a board of directors, preferred shareholders, investors, or other factors that show your organization has the right to control the terms and conditions of your employment (namely the right to hire, fire, pay, supervise or otherwise control the terms and conditions of your employment), then you may be able to meet this requirement.   Some of the evidence you may submit to demonstrate the distinction between your ownership interest and the right to  control your employment includes:                
    
        Term Sheet
        Capitalization Table
        Stock purchase Agreement
        Investor rights Agreement
        Voting Agreement
        Organizational documents and operating agreements
    

Otherwise, your options are almost none unless you quality for EB5 [1]

[0] [http://www.uscis.gov/eir/visa-guide/h-1b-specialty-
occupatio...](http://www.uscis.gov/eir/visa-guide/h-1b-specialty-
occupation/understanding-h-1b-requirements)

[1] [http://www.uscis.gov/working-united-states/permanent-
workers...](http://www.uscis.gov/working-united-states/permanent-
workers/employment-based-immigration-fifth-preference-eb-5/eb-5-immigrant-
investor)

~~~
bradleyjg
The H1B petition process requires the employer to show that it can pay the
prevailing wage. That's going to be near impossible for a pre-funding startup.

------
abhat1988
You can work as an independant contractor or start a company on an OPT, STEM
extension and even on a Pre-Completion OPT.

I recommend that you read this policy guidance published by the ICE in 2010.

[http://www.ice.gov/doclib/sevis/pdf/opt_policy_guidance_0420...](http://www.ice.gov/doclib/sevis/pdf/opt_policy_guidance_042010.pdf)

It clearly states that:

On page 18.

 Work for hire. This is also commonly referred to as 1099 employment, where
an individual performs a service based on a contractual relationship rather
than an employment relationship. If requested by DHS, the student must be
prepared to provide evidence showing the duration of the contract period and
the name and address of the contracting company.

 Self-employed business owner. A student on OPT may start a business and be
self-employed. The student must be able to prove that he or she has the proper
business licenses and is actively engaged in a business related to the
student’s degree program.

On page 19

For a student who is on a 17-month extension, this employment may include

 Multiple employers. A student may work for more than one employer, but all
employment must be related to his or her degree program and all employers must
be enrolled in E-Verify.

 Work for hire. This is also commonly referred to as 1099 employment, where
an individual performs a service based on a contractual relationship rather
than an employment relationship. The company for whom the student is providing
services must be registered with E-Verify. If requested by DHS, the student
must be prepared to provide evidence showing the duration of the contract
period and the name and address of the contracting company.

 Self-employed business owner. A student on a 17-month extension can start a
business and be self-employed. In this situation, the student must register
his or her business with E-Verify and work full time. The student must be able
to prove that he or she has the proper business licenses and is actively
engaged in a business related to his or her degree program.

Contact me if you are interested in learning more about this topic.

Akshay Bhat (Cornell University)

~~~
datacog
What happens when my OPT stem extension gets over ? Mine ends in June 2014

------
pclark
I do not think that the comments here are very good advice. I know a very good
immigration attorney if you need one. Here are my two cents:

* H1B hit its cap last year, probably hit its cap next year. It's a lottery if you'll get one – I know a lot of people that did not get them – It's also very hard to get a H1B if a) you own _majority_ of the company, or b) if you have raised less than $500k.

* I have never met anyone on the E5 visa. It's supposedly a complete nightmare, and takes forever to process.

* The E-2 visa is good but it requires _you_ investing significant capital – six figures – in your business. If you can do this, get this visa since it is the best one.

* I know people that did not get the H1B and ended up working in USA on a J-1 visa: it's a crappy visa but might work, usually requires you to have more structure in the USA though.

My advice is to get a good lawyer and get an O-1 visa. Everyone balks at this
visa but if you match these requirements you are a long way towards it:

* Have press about your startup (techcrunch etc)

* Have been accepted in an accelerator

* Have a degree

* Can get 5 or 10 reference letters from customers / advisors / investors saying how great you are.

One caveat is that again, you need six figures in the bank. Of all the visas
though the O-1 is by far the nearest to an Entrepreneurs visa. I know dozens
of people with them.

~~~
datacog
What are the odds of getting an O-1 ? Almost all of the entrepreneurs who get
funded and get press would fit in the above criteria. Il drop you a dm.

------
neilk
This is what most hackers want:

\- residence in the USA;

\- working for a small salary to cover expenses,

\- but with strong guarantees of equity (ownership or something like it)

US immigration law is designed to stop all of this. Because for most other
cases, that would mask shenanigans like a foreign worker undercutting a US
competitor, or even a foreign worker being exploited.

Bottom line, you may be able to hack this, but in doing so you will probably
give someone else a lot of power over you. Even if you succeed, someone else
may have the ability to extract a lot of that wealth you worked for.

I happen to be Canadian, so living in my own country is not such a hardship
and I still have access to US investors.

This might be a thread derail, but how many people here would consider
residing in Canada as an alternative? The country is much more friendly to
immigration, and if you live in Vancouver, you're just a few hours from SFO or
Seattle by air. Some Silicon Valley companies are starting up divisions in
Vancouver for that reason. But maybe there could be a "Vancouver hacker house"
doing the same thing for foreign entrepreneurs and startups.

~~~
tostitos1979
I'm a Canadian in the US. I'm exploring moving back to Canada . Specifically,
I'm looking at the Toronto area. I'm not impressed by all the process around
incubators and raising small amounts of funds. It is a bit discouraging.

1) The govt seems to be putting money into encouraging startups, which is
great. The way they are doing it seems to be broken. The programs all require
gatekeepers with silly processes (e.g. applying months before, talking about
IP protection from the get go[this makes me think lawyers run the show]).

2) The govt programs mostly have lots of strings attached to how you can use
the money.

3) Some accelerators charge people for "program delivery". WTF!

4) I make over 6 figures in the US. Toronto jobs seem to be paying around half
my salary (60-70K). So if I screw up, I don't want my fallback option to be
move back to the states.

Here's an idea: any student who finishes a PhD or Masters from a Canadian
school .. invest 30-50K in their company. Ask them for matching funds.
Stipulate you can only use the funds for hiring employees.

Anyways ... sorry for the random rant. I'm just really frustrated. I guess
this is good training for when I'm in the trough of sorrow :-p

~~~
neilk
No, I agree with you quite a lot.

It amazes me how much time startups in Canada devote to getting grants. But,
when you lack private investors like SV, and the government is a willing
partner (with lots of strings attached), this is what happens.

------
cemregr
__* You can do this on the OPT __*. Without OPT F-1 employment rules are
strict. But the OPT is basically a green card when it comes to what kind of
work you can do (anywhere, you don 't have to ask anyone's permission to
change employers, you can freelance, you can start a business, you can work
for multiple employers).

You need to work full-time on OPT. I don't know how they check but you need to
be prepared to prove that you're working full time. (I know about this because
if you're freelancing, my school told that I need to keep extensive paper
trail to prove that I'm employed.) There's limitations about how long you can
be unemployed in the OPT.

You need to register your company in E-verify for OPT extension. To register
for e-verify you need tax ID numbers and a DUNS number as well. It's a pain
but I was able to do it myself. (They make you study for a quiz, etc). You
actually don't need to e-verify yourself. Just registering the company and
getting an e-verify number was enough for us.

~~~
datacog
Hi, So I'm on F1 OPT stem extension which is about to end in June 2014. How to
tackle things after the stem gets over? H1B sponsored by my company ?

~~~
eshvk
Once the stem is over, you need to switch to the H1B. Also if you were born in
Canada, Singapore, Chile, Australia, things are easier.

~~~
datacog
Im from India. I will have to go on an H1B, even if I apply for a green card
(EB2), it will take me 5 years with the current queue.

------
bradleyjg
There's no such visa unfortunately. If you qualify for an EB-1A you could self
petition without a job offer and receive a green card that would entitle you
to work wherever you'd like. But that requires you to be among the best in
your field. It's a pretty high bar.

~~~
eshvk
> But that requires you to be among the best in your field. It's a pretty high
> bar.

Surprisingly, the bar is not that high. They have weird rules like people who
are "good" in your field need to recommend you, you need to have something
published somewhere. The nitty gritties mean that say a random fashion model
who has appeared on some magazine somewhere can suddenly become an alien with
extraordinary ability.

~~~
bradleyjg
I've helped put together a few, all successful. You are right that it isn't as
hard as it might seem at first blush. You can get through some mid to late
career professionals who are fairly successful in their chosen field, even if
it might be a stretch to call them extraordinary. But the OP sounds like
someone just out of school.

The heart of the petition is the need to provide evidence for at least three
of the following:

1\. Receipt of lesser nationally or internationally recognized prizes or
awards for excellence.

2\. Membership in associations which require outstanding achievements of their
members, as judged by recognized national or international experts in their
fields.

3\. Published material in professional/major trade publications or major media
about the alien and relating to the alien's work field.

4\. Participation as a judge (individually or as a part of a panel) evaluating
the work of others.

5\. Original scientific, scholarly, or artistic contributions of major
significance.

6\. Authorship of scholarly articles in professional journals or other major
media.

7\. Artistic exhibitions/shows.

8\. Leading role within an organization/establishment with a distinguished
reputation.

9\. High salary/compensation for services in comparison to others.

10\. Commercial success within the performing arts, as shown by either box
office receipt figures or cassette, compact disk, video, or DVD sales figures.

~~~
timtamboy63
I'm currently a sophomore and I _might_ satisfy these - any idea if these
would work?

3\. I've been covered on CNN, Quartz Magazine, Business Insider, Valleywag

4\. This one seems a bit iffy - I control entrance into a pre-accelerator
program (would this count?)

8\. Founded and currently running Startup Exchange at Georgia Tech. I'm not
sure how they determine distinguished reputation, but I run a pre-accelerator
program, and I'm about to launch a student-run venture fund. (this might also
fly as #2)

Any idea if I'd qualify?

Also, getting extraordinary entrepreneurs to recommend me definitely wouldn't
be an issue.

~~~
bradleyjg
It's impossible to make a complete evaluation based on what you've provided
here, but I'd lean towards no.

One problem is that I don't know exactly how you'd define the field. That
turns out to be a critical step in putting together a persuasive narrative.

The other thing, at least on the cases I worked on, we never had a case that
was just sort of scrapping by. We got a 2-3" binder and filled it with
evidence. We tried to hit as many categories as possible, not just the
minimum, and in each category provided more than one example.

On the other hand, I only worked on a half dozen, and they were all successful
(although we did get an RFE on one), so I can't really say I know exactly
where the line is.

~~~
timtamboy63
That makes sense. I guess it isn't one field per say - the media was for
computer security, but the rest is all about helping entrepreneurs.

------
lazyant
IANAL, I believe you cannot work on your startup or any other company with an
F1 (you can only work part-time on campus edit: I forgot about the OPT, worth
looking into) or H1B (you can only work for the company that sponsored you).
You may want to look at the L1 visa.

~~~
abhat1988
Please your information is incorrect, with proper authorization (OPT or STEM
extension) a student on an F1 visa can start a company.

Please look at my other post for reference to the guidance published by ICE.

------
tahminawatson
[http://watsonimmigration.wordpress.com/2011/08/09/h1b-visas-...](http://watsonimmigration.wordpress.com/2011/08/09/h1b-visas-
for-entrepreneurs-self-employed-h1b-visa/)

Hi, if you are on your OPT and have an H1b pending, you can extend your OPT
until October 1. Depends when in April your OPT expires but H1bs must be filed
by April 1 so you could very well utilize that opportunity.

Depending on the country of citizenship, you could consider an E2 visa also.

I am a strong advocate for the Startup visa which would have helped you.

I assist startup founders with visa options and would be happy to help.

------
shenoybr
Here is a link to USCIS own guidance for the above question.
[http://www.uscis.gov/eir/visa-guide/entrepreneur-visa-
guide](http://www.uscis.gov/eir/visa-guide/entrepreneur-visa-guide)

IMHO, its not impossible and you have options, but it will not be hassle free.
You'll have to jump a lot of hurdles before you get through.

------
kvinnako
You can do this by filing H1B through a consulting company and start working
for the startup as a contractor through the consulting company. One catch is
that consulting company has to pay a minimum h1B salary for you which
shouldn't be a problem if you do get into the accelerator. If you need help
for filing H1B, let me know through email. Good luck.

------
iambvk
IANAL, you can start a startup on H1B if you can prove that you are not
sponsoring yourself. The way few people I know did is, by having a board of
directors with the power to fire you (maybe through majority vote). You need
to list a member of board-of-directors as your manager.

------
sharmanaetor
I'd suggest you don't take legal advice on a forum such as this. Contact a
lawyer.

------
mikegalarza
How I hacked my US startup visa: [http://qz.com/151333/how-i-hacked-my-us-
startup-visa/](http://qz.com/151333/how-i-hacked-my-us-startup-visa/)

~~~
jorgem
This is an interesting tale. When I read these, and all the we should have an
"entrepreneur visa" stories, I can't help but feel sorry for all the others
who aren't as well educated and will never be able to hack our system.

~~~
eshvk
This is true for everything in life. E.g. I became a permanent resident after
winning the green card lottery. The process of getting together nearly five
pounds worth of documents, spending thousands of dollars talking to lawyers in
three different countries, reading enough legal jibberish to understand that
the way the law works in the U.S. is always subject to interpretation and
knowing what that interpretation actually is makes me very certain that if I
had got the lottery at any other previous point in my life, I would never have
made it. In fact, thousands of the "poor, unwashed masses" who this lottery is
supposed to help make it easier for, never get in for stupid silly reasons.

------
mkertajaya
I think you are ok if you are still on OPT status. As you long as you can show
that are applying skills you learned from school.

But try checking with your international office at school.

------
stox
Go look up Phillipe Kahn. Unless they fixed them, there are some holes that
can be specifically exploited when creating your own company.

------
TheCoelacanth
The only visa intended for starting a business is the E5 visa. You need at
least $1 million in capital to qualify.

~~~
cylinder
Misinformation. The E-1 and E-2 exist specifically for starting businesses in
the US. H1B and even L-1 can also be used in some cases.

------
eshvk
I believe the guys who started interviewstreet were on an H1B visa. Maybe talk
to them?

