Ask HN: How do I legally run a startup in US while on an F1 or H1B visa?

    + 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

[0] http://www.uscis.gov/eir/visa-guide/h-1b-specialty-occupatio...

[1] http://www.uscis.gov/working-united-states/permanent-workers...

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...

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)

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.

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

> 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

But try checking with your international office at school.

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.

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.

- 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.

* 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.

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.