USCIS makes it easier for immigrants to build startups in the US | Hacker News Reader

USCIS makes it easier for immigrants to build startups in the US

dhs.gov

67 pointstrustfundbaby23 comments

This, in particular, is a huge win

> In response to stakeholder feedback, USCIS has also updated existing FAQs to clarify that an H-1B beneficiary who is the sole owner of the petitioning company may establish a valid employer-employee relationship for the purposes of qualifying for an H-1B nonimmigrant visa – which is used by U.S. businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as science, engineering, and computer programming.

Is it?

> beneficiary who is the sole owner

I think if you read the FAQ it seems like you previously could establish an employer-employee relationship (required for H1B) if you were part-owner. This just clarifies that its also possible even if you're the sole owner.

I don't think its a huge win though.

I think they are clarifying the extreme case not limiting things. If a company has 2+ shareholders or 2+ employees it’s a stronger case to support requesting an H1B.

But you can't start and work for a company on a H1B, so it sounds like a chicken and egg problem.

Also EB2 is clogged for China and India in 2007, so they may not get the benefit of this.

That's an oversimplification, quoting the newly updated USCIS FAQ on the subject of H-1B employer/employee relationship:

"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."

In other words –- the employer-employee relationship may be established when a board of directors controls the employment status of the beneficiary (e.g., a founder) on behalf of the corporation (the petitioner).

How can this be practically used? Start a startup, get a board of directors? How many startups have a board of directors? If you already have 500K or 1M lying around, you can get the EB5 visa anyway which does away with this nonsense of requiring a board of directors that control you and all the restrictions that comes with H1B and all the advanced qualifications for EB2 that are not relaxed for entrepreneurs.

Every corporation has a board of directors. You're right, if you have the cash to go this alone, you're golden. If you don't then you'll be looking for cofounders and investors and will like have < 50% equity (and voting rights). i.e. everything is just as it should be and you can be controlled/fired/whatever just like any other founder in this situation.

This is a very positive development. Not the same as stapling a Green Card to your PhD diploma, but certainly a step in the right direction.

CS people keep getting the shaft when it comes to govt definitions of occupation. For instance, there is no software engineer category in the TN visa for Canadians. When the release says startups, I assume tech startups. They say they will also train their employees to understand the peculiarities of this segment. Again, extremely positive news.

There is an 'engineer' category, so if you have a degree that says 'software engineer' (which are about 5-10 classes shy of a CS degree usually) you can use it. They have this artificial distinction between programmer and software engineer where you make or design new code or just modify existing code so lawyers are still required and there is the 'Computer Systems Analyst' that seems to always imply a need for a degree that says Computers in it.

Note, that there are no actual changes in law here, just making the process easier to navigate. And a good lawyer would have helped with that previously anyway.

Still, given my experiences with USCIS employees, anything that clarifies things for them is wonderful.

Since the document isn't accessible (for me) at this time, can anyone please TL;DR; this?

I am an alien entrepreneur - in what circumstances can I found a startup, and legally immigrate to the US while working it?

In that case you'd probably be eligible directly through the EB5 category, which has a prohibitive $1M price tag.

An alternative would be to get yourself a cofounder who was a citizen, while working on your startup from wherever you were, then get a lawyer to file to get you into the country on an H1-B ... my feeling is that the new rules make this a lot easier to do now.

I'm not a lawyer, but I am an H-1B holder, so filter my interpretation accordingly.

Mostly this document is a declaration of intent. It says "if you are a legitimate entrepreneur, we are on your side". It doesn't actually change any laws or regulations.

Instead it clarifies the circumstances under which you can apply for existing types of visas. Since applying for a visa is expensive and lengthy, people tend to avoid applying for them if their qualifications are ambiguous, so saying "yes, you will definitely qualify" is a valuable thing.

In particular, they are saying they are making it easier to get an EB2 visa, which is a very nice one that lets you stay permanently and apply for a green card. The official requirements for an EB2 are quite strict:

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b...

Specifically it requires documentation of 10+ years of experience and you have to be a "professional" (e.g. doctor, laywer). However, these requirements can be waived under an existing exception for "national interest", and this document is basically saying that entrepreneurship can be considered as being in the national interest. That's a huge step!

In addition, H1B visas are usually oversubscribed, so they become a lottery. But there have historically been lots of EB2 visas left over every year. So not only does it make an EB2 easier to get, but if significant numbers of H1Bs applicants decide to apply for an EB2 instead, it will increase the total number of visas issued every year (anti-immigration campaigners should note that the numbers we're talking about are still laughably small: there are only ~13,000 EB2 visas available every year, and ~65,000 H1Bs).

In answer to your specific question: if you can prove to the USCIS that you are really an entrepreneur and are trying to start a business, you may be able to get an EB visa under the waiver. However, it remains much easier to join an existing business an American has started and then apply for an EB2 or H1B to the existing business.

In short: America still doesn't seem to like it when foreigners come over and try to create jobs, but they have agreed to make it slightly less difficult if you do.

EB2 is badly crowded for India and China and currently stuck in 2007, so this is not going to change anything for them but might make it worse for people already waiting.

Does this mean that I can establish my own business on a H1B and then have that business sponsor my visa so I can work for it?

I'm pretty sure you can do that without an H1B, but you can't work for that business (your own business) without an H1B.

Yes, anyone (barring odd things like maybe felons?) can form a corporation in the US. But without a status like H1B you cannot work for that corporation in the US.

You just need to show that you will report to a board of directors that has the ability to control what you work on or whether or not to continue to employ you (this really isn't too far off from anyone else starting a company with cofounders and investors).

Then how is this different from regular H1B anyway if you need cofounders and investors? It's not as if they're giving a concession for EB2 since you need to have an advanced degree/10+ years exp. or national interest waiver even with the new rules.

Yes, but you have to prove that there is a separate Board of Directors which has the ability to hire, fire, pay and supervise you. If you get funded, i think its easy to prove

Where did you get that from?

The new rules seem to say that you can do this as a sole proprietor.

The updated memorandum still talks about the control issue of having an employer-employee relationship. If you can't demonstrate that you can be fired (amongst other things), it doesn't pass the employer-employee relationship. You can be the sole stockholder, but you still need an entity within the company that has control over you - the example they give is a Board of Directors.

Hogwash. Looks like it changes nothing.

At [1], see Q4 onwards.

In other words, it seems like the same old thing. What has changed is that you can be the sole owner of a company instead of a partner earlier but you already must be in the US on a valid non-tourist visa to start a company here right? Will this help students? But you need an advanced degree or 10+ years exp! How does one show their company is in the national interest? It's not easy, not to mention that this is useless for people of India and China because EB2 dates are back in 2007 for them.

[1] http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f...

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