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Comment by throwaway-09221 | Hacker News Reader

Hey Peter! Thank you tons for your contributions here!

I'm an Indian in the US on an H1B visa and working in software. I've also made a product for fun on weekends (which my company knows about and approves of).

I was thinking of opening access to it for the world, but as it'll involve substantial costs on (cloud) infrastructure, I'll have to ask people to pay for usage on it. I don't plan to profit from this in any way right now. People will mostly pay for their share of usage.

From some rough googling (oh, no!), it seems like this wouldn't work under the rules of the H1B as it'd be considered unauthorized work. Is there any legitimate way of giving people access to this without having to also just pay for all the infrastructure myself?

Also would it be fine to just release it for free?

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It is a gray area but I don't see any issue if you release it for free. Getting paid, even if to cover your expenses, is more problematic, however. I wouldn't say it's a complete non-starter but it would have to be structured very carefully and properly to avoid crossing any lines.

Is there any documentation you'd be able to point to about how to structure this? Not the OP but in a similar boat.

Or would you recommend reaching out to an attorney to do this instead?

Really the latter because what's out there is just too general to be really helpful.

IANAL but could you not just base the business and get paid in the home country? Surely even if US taxes on worldwide income it's just that, tax, not any sort of 'unauthorised US work violation'?

No. They check your tax returns every year with some automated process. If you document any income that is not approved youll be in trouble. My college rounded up all the international kids doing business in their own countries and told them to stop immediately.

Weird, I just don't see why business-related (or even employment) income in other country X should be any different to investment income, rental income, etc. in other country X.

Not wanting to pick on the parent comment but this is were 'lay person opinion led forums' don't work for legal questions.

You may not see why, but that's you conveying your opinion based on common sense or your own reasoning vs the law.

The law says that your H1B via only covers you to receive income via your W2 employment with the company the visa is attached to.

If you are an H1B holder you can't be employed or contracted to work for another company in your home country/another country outside the USA because you would still be performing the work in the US and you are out of visa. Even if it's your own company.

If you put this income on your tax return you will be disclosing to the government you are working outside your visa. If you don't put this income on you tax return you are filing an incomplete tax return (and still working outside your visa).

The difference here from receiving investment or rental income from abroad (which you still have to include on your US tax return!) is that investment and rental income isn't 'work' covered by an employment visa.

A work visa is a permission to take a job out of the US employment pool, and the flaw in the law is that if you are working on your own company (inc side project) abroad, you are not really taking a job out of the US market because you wouldn't have hired anyone anyway. But it's a corner case and the law isn't built around corner cases.

(IANAL)

Well I never answered anyone's question, tried to, or claimed to be able to. I said IANAL just as you did. I never claimed to have anything other than an opinion. I think I even made it pretty clear that I'm not in the US and don't know how its visas and taxes work.

> A work visa is a permission to take a job out of the US employment pool, and the flaw in the law is that if you are working on your own company (inc side project) abroad, you are not really taking a job out of the US market because you wouldn't have hired anyone anyway.

Exactly. Hence 'I don't see why'. Not legal advice. An opinion that it's (assuming true) dumb. I don't see what the problem is with expressing that opinion on these 'opinion led forums'.

It's way off topic. The Q-and-A here is are about getting actual legal expertise applied to questions, not opinions about how US immigration law is flawed. You're not wrong to say it, it's just that this isn't the place/time.

So Ctrl-F for proberts if your time's so valuable.

This is entirely gray area. The rules of thumb are following:

- Owning companies is totally fine. - Generating income from various sources is totally fine.

What is not allowed is: - You should not work in any capacity where an American citizen could have been gainfully employed. Lot of people mis-represent is that you can not get paid a salary, that is not true. Salary is just an evidence of you worked.

How many people structure this is the following. Partner with an American citizen and start the business. The American partner will hold 51% stake and you will be a passive investor with 49%. If you are married you can apply for H4EAD. You spouse has unconditional EAD and she can run the company.

Important note: This issue is only for people born in India. Everyone else can get their EAD/GC in an year or so.

I would love to know more if you have pointers as well. I always assumed it was a no-go and released a few apps for free over the years.

We would need to talk but I evaluate this question - what can I do on the side - by looking at the extremes first to set the parameters. So, for example, ideating or building a product in your garage is clearly fine and getting paid cash for selling something that you created is clearly not. But in between these two extremes there are gray areas. So, for example, is creating something and posting it publicly problematic if people start using and sharing it at no cost? That seems fine, right? What if there's a cost to using this product but the cost is simply to cover and only to cover administrative costs? And does it matter if this is all associated with an individual or with a company created by an individual? And what if this creation is only accessible and used by those outside the US? There definitely are grey areas and potential arguments to be made to allow for certain seeming work-related activities.

If it is software, Could he just set a company in his home country that purchases server space in the US?

Every attorney I have spoken to in the past has said that something like this is a clear and obvious violation of H-1B visa terms, so I'm curious what the "gray area" you are referring to is.

#444444 as opposed to #808080

IANAL. Can non-citizens run US-based companies? If yes, can't this be done through a company, then OP would just be forbidden from drawing a salary from this entity?

Yes . Non citizens can run us based companies as long as they do that from outside the US. If they want to come to the US to run their US based company, then they have to decide on a visa. There is E2 which is a business based visa but only for certain countries. H1-B is essentially a skilled worker visa and it is assumed that you would have a company and a boss who would file for that visa.

Run your work through companies in Canada and Us. You are employee of Canadian consultantcy which happens to own stock and pay you on the payroll. Your quarterly meetings are nothing other than paper work.

> If they want to come to the US to run their US based company, then they have to decide on a visa.

Only if they want to get paid in any way, right? Can a person run their company w/o drawing any profits (i.e. no W-2 needed) and not have to go through the visa process? If I were to look for a way out of the situation ("I want people to pay so that I have money to maintain the infrastructure"), this is how I'd try to approach it ("create an entity that is allowed to accept money from other sources and use that money only to run the infrastructure").

IANAL, but you can be a 100% owner of another U.S. company, that will be collecting the fees, paying the bills and dividends, but you cannot run it. I.e. on paper, somebody else with the work permit will have to be the CEO.

Would it be an option to let someone else operate the system and collect payments/donations, and then you'd cover the rest of the costs? You wouldn't be able to get any profits if those ever come in, but I wonder if this would qualify as "not working" when all you're doing is giving software & giving money.

IANAL have you considered building a direct payment mechanism into the platform that allows your hosting provider to pass their costs directly to your clients? Cryptocurrencies might be well suited for such an automated micropayment passthrough service. I'd love to hear probert's take on such a system.

I'm no lawyer, but if your intention is to release the project but to cover the costs, it should be possible to set up a 501(c)3 (or partner with one). The organization can charge a fee to cover the costs, and you don't personally need to get paid.

Could you open up donations for the project instead?

I still think problematic and would have to be carefully structured from both an immigration and tax perspective.

curious if there is a visa that allows more the entrepreneurial amongst us?

The visas most closely aligned with entrepreneurs are the E-1 and E-2, the L-1, the O-1, and the IEP (parole).

"Donations" in most contexts are just income with no expectation of a product in return. e.g. twitch donations, patreon donations

PayPal had to explicitly ban the use of the word "Donation" for non-tax-exempt companies for instance.

I don't think calling the contributions donations will change much and it may actually complicate the payments for tax reasons.

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