Post a new topic
    4 Replies Latest reply on Feb 18, 2008 2:46 AM by M20000

    Question on Foreign Start-Ups

    GReegs Newbie
      Hey,
      I'm a recent graduate of a U.S. university with a 4 year bachelor degree. I'm a foreign national and I got involved in a start-up web 2.0 company coming out of college while on my OPT (optional training-12month) visa and now as time is running out, I'd like to switch to a H-1B visa so I can remain working for the start-up (as the growth is fairly promising). I'm wondering what the regulations are for a foreign national holding ownership in a company, and if the company can actually hire a co-founder on a H-1B visa. I recognize that H-1B visas are handed out for 'specialized' professions, but as a driving partner in a young company, does this qualify?
      Any help/suggestions are very welcome.
      Thanks!
        • Re: Question on Foreign Start-Ups
          LUCKIEST Guide
          Welcome to this website. Sorry I do not know the answer, BUT you will get good advice from other Members.
          LUCKIEST
          • Re: Question on Foreign Start-Ups
            laborvisalaw Wayfarer
            GReegs-

            US immigration law does not prohibit you from owning part of whole of a US corporate entity. The regulations, however, prohibit you from working for a US entity without proper work authorization. A company is not prohibited from sponsoring its co-founder for a H-1B visa. However, the USCIS would look at whether the company is not just a "shell" and an end-run around the regulations and thus you may be subjected to more scrutiny. What the USCIS would most likely look at is whether the company's decision to hire you on H-1B visa is driven solely by you (making it a self-interested decision). Also, since H-1B requires a bachelor's degree, the USCIS may question whether running your own business actually requires such degree (it might, but it will may have to be shown).

            It sounds like your OPT allows you to work for the newly formed company (assuming you follow the terms of your OPT). You should be careful with the timing of your OPT expiration and any H-1B approval. As you may know, the current H-1B annual quota was reached on the day it opened so there are no new H-1B numbers until April 1, 2008 for beginning of employment date of October 1, 2008. It is expected that the 2008 quota will be used on the first day of filing, so it is absolutely essential that you file your petition on April 1, not a day later. Furthermore, even if you are able to file your H-1B on April 1, and assuming it is approved, you will not be able to start work until October 1. I am not sure what is your OPT's expiration date, but chances are that since many OPTs have the end of the academic year as their start date (May or June), then yours may also expire in May or June.

            Another couple of H-1B requirements that may be tricky in your case and in generally to start-ups are i) that the company must be actually solvent and able to pay the prevailing wage for your position and ii) you should know that if your company folds, then you will not have any grace period and must either leave the country immediately or file for an adjustment of status (see here.)

            To put it shortly, your idea is doable, but you should know that it is risky as USCIS scrutinizes such cases greatly.
            Note that this is a very basis answer to a question that requires a very nuanced analysis by an attorney or immigration specialist. Hopefully this is helpful to you and good luck with your company.
            • Re: Question on Foreign Start-Ups
              M20000 Newbie
              Technically, your ownership in the company (or driving partner status) is not much of a factor at this point when it comes to a H1B. I am assuming the start-up is early stage and not valued/ raking in millions yet. Right now you should probably be concerned if you can get an H1B, assuming you would qualify for it. Quota for H1B's these days seem to run out on the very first day they are released (April 1) for the coming year (start date October 1). If your OPT is running out before October 1, 2008 then you are in a spot and technically have to leave the US as you get your paperwork sorted out. You might want to check with an immigration attorney on whether a pending case qualifies you to stay till a decision is made - I think not but not too clear on it. The larger issue is whether your company (and you) could even clear an H1B grant process, assuming you apply in time. A 4 year BS in the US doesnt really give you too much of a case (unless its in a superspecialty) or unless your startup is already paying you well and above required wages as per the guidelines for job description, title and location in the US. Your backup would be to work from your home country and procure a business visa to visit the US as and when required for business purposes till it can get to a point where an H1B/L1 application would likely get approved based on credentials, qualification, experience etc. Another option, if you are investing actuall dollars in this new startup, is that you can qualify for an investment based green card (job creation based) but I think the current requirements are $1M in high employment areas and $500k in targeted employment areas. Finally, if your company has an overseas presence (in your home country) you can primarily work from there and also qualify for an L1 visa (for manager/ executive) but there are some limitations (www.immihelp.com/visa/l1). So far, those are some things I am aware of. (Disclaimer: I am not a legal expert. I am just sharing information based on what I know. I think it is best to consult a good immigration attorney to evaluate your options. It is money well spent and dont just go based on what 'sources' say. And make sure you pick a good attorney. Makes all the difference)