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Can an H1B holder start a company and hold controlling interest? How? Answer Request▾

Surprising to some, an H1B holder may start a company and hold a controlling interest. First, here are the requirements for obtaining an H1B visa:

  • Do you have a bachelor’s degree or the equivalent? (“the equivalent” comes out to 3 years of experience = 1 year of education)?
  • Will you be working in a specialty occupation (science, tech, engineering, math, business)?
  • Will the employee be paid an hourly wage?

If you the answer is “yes” to those questions then you can move on in the analysis to determine whether you can be a co-founder as an H1B holder:

  • Do you and the company have an employer-employee relationship? In other words, can the startup hire, fire, pay, supervise, and control you?
    • Think hierarchy: does your company have a board of directors, preferred shareholders, investors – you know, the types of people that can reprimand you even if you have a controlling interest?
      • You can use the following documents as evidence: Term Sheet; Capitalization Table; Stock purchase Agreement; Investor rights Agreement; Voting Agreement; Organizational documents and operating agreements

So yes – an H1B holder may start a company and maintain a controlling interest if that visa holder can be “fired” by the company s/he owns. Need some more assistance with immigration law? Feel free to drop by LawTrades, a legal ma

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