Wait, are they saying I can create a company on my own, no holds attached and go work for it? (minimum investment etc.)
A few questions - does it let me build apps and publish them to the Appstore to make money? (Since that doesn't count as working fulltime for the company I assume).
How do they prevent Masters students who are on an OPT from creating their own companies and sponsoring a H1B for themselves? No regulations on the amount of investment required?
If both of the above are possible .. well, mind=blown.
"... business owners on H1-B visas could work for their own companies, provided that they work full time for the company and are treated like an employee. For example, the company could have a board that is able to hire, fire, pay, supervise or otherwise control the worker like they would any other staff member."
I don't know how many startups have a board that can fire the founders...
I know a few founders who employ themselves under H1-B while also taking all the board seats, but they did this before August. I wonder if this would still fly.
I wonder if there are rules around the board. Could I make the board with my family? Sure, I could be fired, but it isn't likely.
Sad that Washington is so useless that even something as straightforward as "let really smart, educated, financed people in the country to start businesses that hire other people" is controversial.
You probably don't have a family in the US if you come on H1B, but nonetheless, someone trustworthy can serve the board...
Say, YC or other incubator can form a board that will formally control the founders but in reality it's in the incubator's best interest to let the founders do their thing
Is just paying a salary to yourself for the full-day duties not enough to count you as a 'normal employee'? How they could ever envisioned business owners being equal to other employees?
My understanding is, there are companies that will handle all the corporate paperwork for you, including supplying board members. DYODD however, IANAL, etc.
Well, that's still okay. I guess this is one thing that they can't change without government regulation. So like @SoftwareMaven says, what if I can get friends or family on my board? Do I have to be paid whatever the min wage for H1Bs is? (I think it's 45k / year or something).
It just means that you have to be venture-backed. But overall, this is still really good for the economy in general to try to get more entrepreneurs to first leaping from their comfort zone ( full time job ).
As an H1B you still have to be paid market rate, and the company has to have enough cash to be viable. That implies a certain level of minimum investment.
Yes ... you could get them as a cofounder (probably give them controlling shares) and then apply ... but the trouble is showing that your wages could be paid. You might have to get some capital invested or use savings.
Here is what I hate - a top-rated comment with 22 'recommends' and no dissenting replies:
"boblesch wrote:
the immagration fix is so simple
institute a $1 million fine for every occurrence of employing an illegal. no excuses, no exemptions, no exceptions, no pardons.
the illegal immigration problem will DISAPPEAR the day the first fine is assessed."
This has nothing to do with the issues in the articles and detracts from meaningful change. The primary and pressing immigration issues in the USA have nothing to do with 'illegals' but any attempt to talk about it is quickly derailed into a pro- or anti-illegal debate.
I saw 5 years of my life flash before my eyes when I read this.
This AWESOME news. I got my GC a year ago and I quit 3 montsh ago to start something so it doesnt matter now but I would've killed for this 5 years ago.
Note for Australians: These tweaks to the rules almost certainly apply to E3 visas, which would allow you to go to the States with your opposite-sex married partner, and they'd then be allowed to work in any job without further approval from the federal government.
(Through an odd quirk of a US immigration directive, it also allows you to take your non-US same sex partner to the States, but they aren't allowed to work in any capacity. It must be about the only place where US immigration recognizes same-sex relationships.)
Yes, they do. The point I was trying to make was that I imagine that the new directive on the H1B's allowing them to be used by startup-y people would probably apply to E3's too.
ie, Go to the US to work for your business, and take your partner along who'd be able to work wherever they'd please.
I am not sure why your E3 partner would be able to work if they cannot today... Partners of H1B's have H4 status and are not allowed to work. Of course, they can file for H1B, but could not a spouse of an E3 file for an H1B (or E3) today?
H1B requires that the employee satisfies a minimum wage set by the Labor department (varies per state). So if someone on H1B wants to start their own startup with Americans (or existing green card holders?) on their board, will they have to be paid more than that minimum wage right from the beginning? That would need a higher investment to start with. What if the company wants to bootstrap rather than raise money from VC's? Also, would that mean that the person on H1B cannot own a majority stake in his/her own company (given the condition that the board should be able to fire him/her)?
I think the changes outlined are open to wide angles of interpretation both by USCIS and the startups that want to 'hire' the founder(s) on H1B.
I posted about this when it was announced http://news.ycombinator.com/item?id=2838357 and there are a couple of links in there that should help clear up some confusion ... notably this one ... http://j.mp/nFD0xQ (link was real ugly, forgive me for using a shortener)
I was initially very happy about the announcement, but I think the employee-employer restriction is a trojan horse that really hacks the legs off from under the initiative.
here's the paragraph in question
> Yes. In footnotes 9 and 10 of the memorandum, USCIS indicates that while a corporation may be a separate legal entity from its stockholders or sole owner, it may be difficult for that corporation to establish the requisite employer-employee relationship for purposes of an H-1B petition. However, 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.
I see why they did it (CYA) but I think its kind of silly and counterproductive. I mean, you're trying to enable entrepreneurship but you want someone in the mix who is able to control them ... sigh
Great news that just made my day! But I dont really understand the details of this: Are they asking people to found start a business and give the total control (in term of decision making) of it to someone else ?
The whole point of starting a business (to me at least) is to have the ability to build your idea, make it grow and share your vision to the world.
Am i missing something ??
Anyway, this is still a very important step for us, foreigners.
It's not as hard to get an H1B as it has been, because the yearly quota isn't being used up. You still have to be paid market rate, go throuh the labor certification, pay legal and INS fees, etc.
The number one reason why I'm not getting considered for positions in the US is because I have to get a visa. I don't think I would have any problems qualifying, but the hassle for the employer seems too much. That's what they need to change.
I'm not sure about that. The H1B quota for FY 2010/2011 was exhausted sometime in Feb this year I think. Because of this, my application was pushed to FY 2011/2012, so I can only start work in Oct. So I think the quota is being used up. Or at least it was, this year.
Yes, my petition missed the 2011 cap by two days (think the cap was reached on January 27), so as for the parent poster my start date was pushed to October.
The number of people applying for the H1B for the last two years is LESS than the number of H1-B vacancies available.
People just dont want to come to the US anymore at least not skilled workers from India and China like they used to.
What I see from where I sit in the industry is that H-1B pay is not centered about a mean, it's really a very extreme bi-modal distribution. You have your Infosyses, bringing in ultra-cheap IT labor at a pittance, and you have your Googles and Facebooks, bringing in very highly paid engineers that are earning the prevailing wage (very, very high prevailing wage) for their field.
In other words, "H-1Bs" are not a singular group and cannot be analyzed as such. A large part of the H-1B program does address a very critical labor shortage in this industry, the other part... not as much.
I'd invite Dr. Matloff to actually hang around our industry for some time before laying a claim like: "There is no tech labor shortage." Has he been in the hiring chair recently? Because oh dear God.
It seems also interesting that the only source he actually bothers to cite is the confession of a single former H-1B employer, with the nasty implication that everyone is like Mr. Wadhwa.
I'll just say it: this is xenophobic, anti-immigrant, protectionist bullshit.
Thanks for this post, as a H1B on my to SV it's frustrating to be lumped together with "lowest bid" coders. My employer specifically reached out in a recruiting campaign in Europe because, quote "we've interviewed every possible and willing candidate in the valley". If you look at the money they throw at my transfer it's easy to conclude that they'd rather hire local if it was possible.
This can't be true because usually the applications would be oversubscribed within one day of the new fiscal year. One day! I remember that clearly because it was such a big crapshoot whether you'd get granted a h1b or not.
That means that the US is betting it's future on people already in the US. Surely they need to continue to attract the best people from all over the world?
This is great and expected news for the last few weeks, but is it true that you need to be employed with minimum wage? That sucks! If I want to startup, I have to definitely go full time now and there is no way I can pay myself that wage. They need to relax this rule, if they want to really support startups.
This is my 8th year here in USA and I have a green card being processed. I have decided to give it all up, move to India to start working on my idea for a year and come back here next year as a dependent (my spouse would continue to remain here).
If this rule allows me to create my own startup without the wage rule, I should be able to remain here on my own H1 and possibly continue my green card as well (or does anyone know how it works in this case?).
This is massive news. I met Vinod in SF when I was leaving the bay area, partly for visa reasons. Now it seems I can return with a company of my own, if it's set up the right way.
However, having spent 6 months fighting USCIS, I'm a little sceptical about it translating well into practice.
So if I, an Irish citizen, founded a company with Americans employed or on the board I can apply to stay beyond my holiday visa?
Will be pitching like mad at YC NYC if this is the case!:)
Careful. There's a wide range of activities you're not allowed to take part in on a holiday/tourist visa, and so you want to make very sure that there's no appearance that you did business in the US (such as work on a startup) while in the US as a tourist.
Meetings are ok, AFAIK, as long as they are not for productive work, with some further caveats. Not that I want to dissuade you from pitching, but be careful there's nothing there to give the wrong impressions if/when you do decide to apply for a H1B.0
Not a lawyer, but I did get extensive coaching from an expensive immigration lawyer a few years back on what I could do (and how to describe it to US immigrations) while in the US, as I was traveling over every 2 months for meetings while we applied for a H1B, because immigrations understandably started asking more pointed questions when they saw my passport was full of stamps from the same US airport (never had a problem and they were always courteous, just probing more about my reasons for coming).
Not exactly, but broadly yes. You have to go back to Ireland to trigger your H1B. (Also, and I think you aren't suggesting this, but never ever ever overstay your holiday visa, or you'll be banned from getting a US visa for 3-10 years).
Definitely a step in the right direction, but I think they should just turn the Bay Area into a Special Administrative Region similar to what Hong Kong is to China.
Great news. I think for the H1B category, the biggest improvement is that you can now point at a document and say "According to this document, my application is legal".
The bigger news really is the EB2 for entrepreneurs, but it remains to be seen how many companies qualify to be in the nation's best interest ...
Interesting. Does this mean that people who want to come to the US as a contractor could now bypass the "body shops" by creating their own "body shop"? This would mean that you have almost the same employment rights as a US citizen so long as you own a body shop company that employs yourself!
"How do they prevent Masters students who are on an OPT from creating their own companies and sponsoring a H1B for themselves? No regulations on the amount of investment required?"
Why prevent masters students from creating their own company if that creates more jobs and will probably help the economy.
I am excited but I am really curious about how I can bootstrap my startup while working for a big Co. on H1B. Is it possible with these "updated rules"?
EDIT - the "full time" sounds like a major hurdle for those who want to bootstrap. Am I correct?
I agree. It just clears the air up whether i can create and work for my own. The other part that I feel is impeding is the minimum wage requirement. Its hard to pay myself 45k (or whatever is the min wage).
Hmm this isn't bad, but I really hope it doesn't prevent real actual change (I seem to recall someone running on that slogan) so that one can get to the US and actually contribute something.
I hope this happens 10 years ago. But congratulation to all H-1B hacker news readers. You now can do something amazing without worrying about your visa.
Unfortunately, not really true. The real strength for natives is that they can spin up a company on their own time- create a product and throw it out there. If it works- great- quit your day job and go to your startup. If it doesn't, no big deal- you still have your full time job.
Us H1B-ers are still tied down. I'd have to transfer my visa to my new, fledgling company. If it fails, I have to leave the country.
Once its transferred, its transferred. There is no "return policy" equivalent because its tied to an employer and your past employer wont necessarily keep the position open just in case you need to come back.
I think you are under the impression that they're talking about the actual H1B transfer failing, but in reality they're talking about the actual new startup company failing. If the startup does fail and the H1B isn't transferred elsewhere again, they do lose the visa.
Its a risk one must take but you don't just wake up one morning and 'fail' ... you see it coming, and you should be able to line up interviews and at least make an attempt at getting a gig before that happens .... thats what I'd do, but that's just me.
a) Although I agree it is a gray area,the USCIS is probably not going to come after you for "working" for your company for free while you waited for the H1-B approval.
b) Noone has to know.
c) Although different apporaches exist,my opinion is that you should have probably already made something that a lot of people use even before you talk to the VCs.By doing this you were working for your company without an H1B.But this issue can be solved if you refer to point - B above.
Except the investors, who would realise immediately. It's all very well to say that USCIS "shouldn't" and "probably won't" do things, but:
1) That doesn't reassure me much. I don't want to be deported.
2) That shouldn't reassure an investor much, either. If they realise you are going against immigration law they might run from your company at sprinting pace once they realise the founder could be deported.
I want these kind of changes because I want to be legitimate.
I am quite close to a lot of deals and I can definitely say that most people who are considered a-list investors today are both:
a) willing to invest in someone who is waiting for a visa
b) willing to use their contact network to get their investment secured with a visa for the founders. I've seen this happen multiple times - good lawyers pulled into the deal to expedite visa issues.
Yes... but you also have to explain to the venture captialist that you'll be unable to work for the company you created for a number of months while your paperwork goes through.
Don't get me wrong, this is a step in the right direction. But the mythical Startup Visa it is not.
I had my H-1B visa transferred between companies last week. Took seven business days, not months. My new company paid for premium processing, which is supposedly guaranteed to complete the process in 15 calendar days.
The process isn't complete though, correct? You have authorisation to work for your new employer, but the actual transfer is complete- that takes months.
Not that there's anything to worry about usually, it's just the kind of uncertainty that really isn't helpful when you're setting up a company.
"You have authorisation to work for your new employer"
But the actual transfer is not complete. You are not guaranteed to be able to continue your work. The chances of problems are small, but it does happen.
The document makes no mention of TN visas, no. TNs are significantly different from H1-Bs: they are not a dual-intent visa, they are a temporary work permit.
Wait a minute, I got a question I hope people can clear up for me... because I see a huge elephant in the room.
So they're saying if you have a H1-B visa, you can work for your own company full-time.
But.. umm.. if you have a H1-B visa, that means you probably got it from your current employer whether it's Google or Goldman Sachs. That uh.. means you're already working for them full-time, and if you quit, then your visa is gone! And now the rule doesn't apply to you anymore.
Well the way I understand it. That's how it should work.
You keep working on your existing H1b for Google or whatever, start your own company.
Give yourself a job in your company, joining to which depends upon the new H1B that you will apply for. And once it is approved, you can quit your previous job and hence the previous H1B.
Correct me, if am totally off on this.
But also, now you are able to create a company that is profitable from day one, and might not need any external funding for a long time. At least the opportunity is there to create something.
So all the filing/lawyer fees would be paid by yourself for the transfer since it is your own company now?
Between that and the prevailing wage req, I still see quite a high bar. :\
What does "treated as an employee" mean though? That's presumably intended to prevent people from just starting a one-person company employing themselves.
I came here exactly with the same question! To build my company from ground up, I need to work for it. But how can I do that if I am already working full time for my current employer ?
A few questions - does it let me build apps and publish them to the Appstore to make money? (Since that doesn't count as working fulltime for the company I assume).
How do they prevent Masters students who are on an OPT from creating their own companies and sponsoring a H1B for themselves? No regulations on the amount of investment required?
If both of the above are possible .. well, mind=blown.