H1B Visa · Seed funding

Partnering with H1B employer on a startup

Ashish Fernando Cofounder & Head of Product, Techno Geek and Game Changer

December 3rd, 2017

I am on H1B and I was simultaneously working on a business idea. It got a lot of traction in the market so I took the risk and pitched to my own employer. They liked the idea and want to seed fund it and initiate my Green card as well. Since GC will take some time (I am from India and there's a long wait list), is it possible to start a company this way with me owning majority stake? I know I am on H1B and USCIS norms don't allow, but its my own employer in the equation this time and they will be paying me a founders salary. Any suggestions welcome.

Kirill Pertsev

Last updated on December 4th, 2017

The general answer is no. You violate the H1B status conditions and these days USCIS is much more strict in enforcing them. Without doing an H1B transfer you can only work for your employer. You can have a _passive_ stake in the other company, but can't work for it. Your employer can start the new company, and then someone who will run this company can file a transfer petition for you, but young companies petitioning for an temporary alien worker are usually under scrutiny from USCIS. Not doing this can seriously damage your GC chances.

I'd strongly suggest you talk to immigration attorney, who is doing a lot of H1 and business immigration. Ping me for a recommendation if you want. Just talking to a lawyer wouldn't set you back more than a couple hundred, but will save you thousands and years.

If you keep working for your current company without doing the transfer, then your idea and your new "company" becomes just a project of your current company. And by law everything you create will belong to your current company regardless of what they say to you. I have a good friend who made such mistake here in the Bay Area and at the end he was sued by his "current company" and lost everything. He had to mortgage his mom's house to pay lawyer fees. And he is a citizen, he had no immigration issues. He just cut the corner.

If your current company is willing to put the agreement on paper then you can vet it by a good IP lawyer and proceed, but exposing such agreement to USCIS may lead them to believe that you violated the letter of the law. If you lie to USCIS and they catch you you potentially look at deportation and life time ban from entering US.

Be very careful. Talk to the lawyer and if it sounds too sweet and easy - talk to another one. Never trust lawyers paid by someone else - they don't work for you they work for someone else.

BTW, you don't need to wait until you receive your GC to start working for anyone else. If you are on EB2 track then you (probably, I don't remember how does it look like for Indian nationals) file your I-140 and I-485 petitions simultaneously and I-140 will get approved relatively quickly, it's the final I-485 that takes years for you guys (I'm lucky, I was born in the ROW country - Rest Of the World :-)). But after I-140 is approved you can file for EAD which authorizes you to work for any employer. It's almost as good as green card when employment is concerned.

But don't trust me, talk to the lawyer.


Update: Don't trust your employer's HR either. HR is not there for you, they are there for the company. The objective of the HR department is to protect the company from you, the employee.