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Difficult, but not necessarily impossible. There are several additional problems which must be overcome to get an H-1B in the startup context:
First, availability of an H-1B. Do you have an H-1B already, or do you need to go through the cap lottery process subject to the probability of even being selected for an H-1B. not an issue if on an H-1B currently or selected for an H-1B within the last six years, but a pretty large threshold issue if starting a company while still on Optional Practical Training (OPT), or working for an employer on a non-H-1B visa such as an L-1.
Next, the H-1B requires a true Employer/Employee relationship between the company and the Beneficiary. The terms of employment – initial hiring, pay, benefits, work hours, vacation, review etc. – must really be in the control of the company and not the person being sponsored. This makes it very difficult to obtain an H-1B for single-founder, pre-funding companies. However, when multiple founders are involved or the potential H-1B founder’s equity has been diluted to a point where the majority of ownership rests elsewhere, this can be addressed. Even with majority ownership, it’s possible for some form of operating agreement to shift power over the founder’s job to a board or non-executive director, though this often proves more difficult.
Finally, the bona fides of the new entity. USCIS often questions whether there truly is an offer of real employment with smaller companies, even when not new. The lack of an established history in business doesn’t help. However, there are ways to document that the company truly exists, is actively operating, and has access to funds (even without profitability).
It isn’t impossible to get an H-1B to switch over to your own company – but it requires preparation and planning to make it work – or to find an alternative.
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