Can a H1B holder work for a startup as a co-founder?

Yes, but only if someone can fire you. Confused yet?

The H-1B visa requires that there is an employee-employer relationship which makes it seem as though someone who founded a company cannot have that distinction based on that type of a relationship.

New Developments

However, recent changes to the U.S. immigration laws have made it possible for a co-founder of a startup to be eligible for an H-1B visa if their employment is solely up to the company. Therefore, the easiest way to do this is by establishing a board of directors that is immediately above the H-1B employee within the company’s organization chart.

Since the board of directors can directly control or influence the employment of the co-founder, then he or she may be eligible for an H-1B visa if they meet the other criteria. Directly control or influence means that the board can hire, fire, supervise, pay, and more.

Requirements

Just so that you are aware, a few of the other requirements for obtaining an H-1B visa include proving that the company is a legitimate company. This is rather simple to do and is done by providing the proper documentation such as leases contracts, etc.

Another important requirement is that the company has to be able to pay “market wage” for the employee which the wage being heavily influenced by the Department of Labor’s Occupational Outlook Handbook (OOH). Obviously, these are not the only two things that you should be concerned about as there is other criterion that needs to be satisfied, but they are the two that most businesses often have trouble with.

The USCIS has a lot of useful tips on their website at http://www.uscis.gov/news/public….

This process can be complex and the knowledge and insight offered by an attorney is invaluable. I work at a startup with a mission to make lawyers more affordable, accessible, and transparent. We can connect you with an experienced immigration lawyer on-demand at LawTrades.

Hope you find this answer useful! Feel free to reach out directly if you have any further questions.