I'm Peter Roberts, immigration attorney who does work for YC and startups. AMA

What’s the play for solo founders? I can’t establish a company and work towards funding without an H1B but then at the same time I can’t really afford an H1B without funding.

Very curious about this as well. I've seen articles[1] that suggest that you canis engage in passive work, which includes activities such as:

- Conducting market research and customer discovery

- Discussing planned investments and purchases with prospective co-founders

- Attending and participating in business meetings

- Developing business relationships, such as meeting with investors and clients

- Negotiating contracts

- Incorporating a US company, applying for an EIN, establishing a mailing address, and applying for a business license

- Act as a passive shareholder or investor

However, my attempt to find the specific regulations or uscis policy memorandums that state these failed so I'm unsure.

[1] https://www.deel.com/blog/starting-your-own-business-h1b-vis...

Would really like to know about this one as well

+1

In connection with trying to start a company, there are a lot of activities that can be undertaken as a visitor without a work visa. In fact, I would say that more often than not companies founded by foreign nationals are started when they are visitors. The line that can't be crossed is productive work for compensation but establishing the company, obtaining funding, meeting with potential clients, even hiring can all be done while in the U.S. as a visitor. That being said, the line between work and non-work sometimes is grey and nuanced so it's good to consult with an attorney to understand the limits. This is particularly important when traveling to the U.S. because it's at the port of entry where entrepreneurs are most likely to have issues particularly if they are traveling to the U.S. frequently. One form of protection so to speak is to establish the company with the goal of obtaining an E-2 or E-1 treaty visa; the visitor regulations are much more flexible regarding permissible activities as a visitor when the visitor is planning to get an E-2 or E-1 visa.

I did this for a bit. There has to be an employee employer relationship even if you have equity. You must establish that you can be fired by the board or an executive in the company. Also you need to be on payroll (W-2) at pulling a prevailing wage for your region and job description.

See my comment to OP

Curious what is the rationale for this rule. Not against or for it or anything, just interested in what historical precedent led to this logic.

What if I have an H1B, but want to pursue starting my own Startup. What are the actions that I can undertake without jeopardizing my status or relationship with my current employer?

One of the main hurdle is I cant go an seek customers, as my profile would show an employee with my current employer?

The real issue in establishing a company while employed by another is that your current employer could have claims over the IP that you develop through your startup so while there are lots that one can do vis-a-vis a startup while currently employed by another company (or in the U.S. as a visitor) as noted in my comment above, I think the bigger issue is putting the company's IP and other assets in jeopardy by incorporating while still employed by another company. This is a corporate/IP law question so out of my area. As a foreign national seeking to start a business, I think it's as if not more important to consult a corporate law attorney than an immigration law attorney and it's also good to get them talking to each other.

Good point. A lot of people don’t know this.

If the company makes it - the venture can be in legal jeopardy.

Since an H1-B or O-1 visa is an employment visa, it has to be used as an employee to work for an employer.

Two founders can form a board and hire each other, creating an employee-employer relationship to the business. This has been done with great success for O-1s; I doubt it would be as easy for an H-1B.

There isn’t a visa that allows immigrant or nonimmigrant intent to come to the U.S. and be self employed. Therefore your business structure must not contain a whiff of self employment.

Thanks for the response!