Comment by maxdemarzi | Hacker News Reader

Comment by maxdemarzi | Hacker News Reader

H1-B Transfer to your startup? http://www.askthevc.com/blog/archives/2008/04/does-having-a-...

See one of the comments:

"I have a lot of experience with this, having done it several times myself. Proving the company is 'real' to the USCIS can be tricky, because they don't consider companies with cash but no revenue to be viable. Luckily it never usually gets to that stage of analysis for a simple H1B (although green cards are a whole different matter). Just make sure you have an office address,letterhead, phone numbers, a bank account and good lawyers. The USCIS will often pick up on little details that show the business is being run out of someones backyard.

The hardest part is in the early stages, prior to transferring the H1B visa, because technically the visa holder can have no involvement in the company i.e. cannot attend meetings or talk about the opportunity without violating their status.

One approach I used successfully was to get my accountant to create an LLC. The LLC held my shares in the new startup. My immigration attorney then applied for a part-time concurrent H1B to work for that LLC as a board member a couple of hours a week, in parallel with myexisting H1B visa, allowing me to be involved from day one (you can start work the moment the visa is filed). When the startup was funded, they then filed a H1B transfer for me. "

This can be done, but it's not a long-term solution and honestly I wouldn't recommend it.

H1B visas are granted for three years, and you can renew once. That gives you a total of six years after which you have to go home - no matter how well your startup is doing at that point. I've never heard of anyone doing the above and managing to keep their Green Card application going. I'm not sure it's actually possible.

In contrast a Green Card can be renewed indefinitely, so it's a rather valuable thing to wait for. Totally worth it in my opinion.

> H1B visas are granted for three years, and you can renew once.

Not exactly. They can be renewed past the second term indefinitely, as long as an immigration application (I-140/I-485) has been filed with USCIS and is under review -- can be a long process.

Right, yes that's true, but if you submit an immigration application while you're at a large company, and then do your own startup and transfer the H1B, I'm pretty sure you will have to give up on the immigration application. I've heard of people starting companies and transferring H1Bs, but never of anyone who has done that and managed to keep an immigration application going.

I think that most people file I-140/I-485 concurrently and apply for employment authorization at the same time. At that point they are not tied to their company exclusively, and theoretically they could even leave, if they are confident that the company would not maliciously retract their application. The risk there, of course, is that as soon as EAD is used to justify employment, H-1B is no longer valid, and if the initial application is denied, the applicant is automatically out of status.

I recently (by me I mean the company I worked for) recently applied for an H1B. They asked for past tax returns, and proof that the company had employees and revenue.

It gets tricky because I'm in my second H-1B term. The H-1B has a maximum term of 6 yrs after which you need to go back for an year, unless you have a perm residency petition pending.

From what he says about USCIS picking on little details, I think setting up my own company and sponsoring an H-1B without revenues will be subject to audit for sure and could jeopardize my green card petition.

I'm going to talk to an immigration lawyer but from my past conversation or two, they say this is very hard to do without raising major flags.

Here is the problem with this solution....it's not a hack. More a risky gamble. H1-B's are 'non-immigrant' work visas. i.e. once you apply, you are explicitly saying that you have no desire to immigrate.

So if you do find a loophole, and exploit it - remember that your green card can be revoked. To stake your entire existence on your exploiting a loophole seems a little risky to me.

I am not discouraging you from trying, believe me...I was in your situation a few months ago, I just don't think it is a sustainable path to take.

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