starting a consulting business on H-1 B

M

ms. confused

New Member
Me and my husband are currently on an H-1B for different employers. We would like to start our own company. As I understand, we can start our company but cannot work for this company. Is it possible to have the following scenario:

My husband starts an LLC or a C-corp. He then employs me by either transferring my H-1 or applying for a new H-1 for me. My role would be to manage the company and also provide consulting services to clients in the same field as I am in presently (which would be the same as my H-1 job description).

Is this possible and legal?

please help!!
 
I have an MBA degree and have been doing management of healthcare facilities on an H-1. My husband would start the company as a passive investor and hire someone to work on the H-1 paperwork and to hire a lawyer etc. Once my H-1 comes through I would manage the company which would include getting healthcare facilities as clients. On behalf of the company I would do consulting for those healthcare facilities. I would be on salary at the company and all the money generated by my consulting would go to the company.
 
So, what you saying is my husband cannot even apply for a H-1 for me. What if he hires someone who is a US citizen and then that person files for my H1. Whould that be OK?
 
I disagree with Joe's analysis. H1 visa's can cover management roles, especially if you are in a technical or specialized field which you appear to be (healthcare). There are plenty of companies in Silicon Valley with CEO's and vice presidents on H1 visas. It all comes down to showing that the position requires specialized knowledge. Most management positions do require specialized knowledge, hence the existence of management schools and MBA's.

The most conservative strategy would be to create an LLC where at least one member was a citizen or permanent resident and your husband is a passive investor. However in my opinion, your husband can spend a couple of hours talking to an attorney and authorizing the attorney to act as his independent agent in order to create an LLC and file an H1 for you. The attorney becomes an independent director or officer of the corporation depending on the structure.

Since your husband isn't being paid for this meeting with the attorney and it is of extremely limited scope, I doubt the USCIS is going to make an issue of it. I am unaware of any cases where the USCIS has claimed spending two hours in an attorneys office and signing a couple of checks represented 'unauthorized employment'.

An article on murthy.com confirms this approach is possible:

In other words, a person on an H1B or other temporary work visa in the United States is legally allowed to invest in any venture or company and could possibly undertake some limited volunteer work on behalf of the venture or company. However, the individual cannot work indefinitely for that company and earn a salary without obtaining prior approval from the INS or DOL to work for the particular venture or company.

What are some strategies for getting started?
How does one develop a company to a point that an H1B approval can be obtained if one cannot work there, yet? It is generally helpful to start the company together with a U.S. citizen or permanent resident, since that person would have an unrestricted ability to work. The citizen or permanent resident could solicit funding, do market research, attend trade shows etc, without worrying about violating the terms of his or her work visa status. In that way, the H1B holder could remain a passive investor until s/he obtains an approval to work for the new company.

We have also seen groups of H1B holders join together to start companies. While it is necessary to be extremely careful not to violate one's status, at least in this situation there are more people involved amongst whom to spread volunteer efforts and get the company started.
Click to expand...

from http://www.murthy.com/startup.html

The primary issues are (a) increased scrutiny if the LLC is owned by a relative and (b) showing an ability of the company to pay your wages, as required during the H1 filing. Also remember you can't use that LLC to file for a green card because of the family connection.

Contact a good immigration attorney and I'm sure they could structure something that works for you. Be prepared to spend some serious money though, since you need to pay for attorney services, and probably need to put aside a chunk of cash to show the company has the ability to pay wages.
 
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JoeF said:
Care to name some?
Click to expand...

You forget that we had this exact same discussion before in a previous thread!

The following data is from www.flcdatacenter.com and is just a small sample of certified H1 applications in the 'Managers and officials' category for CA and NY since 2000. By your reasoning, this category shouldn't even exist.

Trans Pacific Ventures LLC 001 President & CEO
Stratify, Inc. 001 Interim President & CEO
BRASSTECH INC 001 DIRECTOR OF OPERATIONS
THE BEVERLY HILTON 001 INTERNATIONAL SALES MANAGER
Philips Semiconductors Inc. 001 Executive Project Management
Lam Research Corporation 001 VP N/A Field Operations
INFOTECH SOFTWARE SOLUTIONS, INC. 005 OPERATIONS MANAGER
ENTERPRISE RENT A CAR 1 ASSISTANT MANAGER
HIGH CONNECTION DENSITY INC 001 VICE PRESIDENT
A & M LEASING SALES 001 MANAGMENT CONSULTANT
PICK UP STIX 1 GENERAL MANAGER OF OPERATIONS
ENTENMANN-ROVIN COMPANY 001 CEO/PIANT MANAGER
MONTEREY RADIATOR 001 BUSINESS MANAGER
THE COLOR FACTORY. INC. 001 ASST. VP OF OPERATIONS
PANDA EXPRESS INC. 001 OPERATIONS-GENERAL MANAGER
ALi MICROELECTRONICS CORPORATION, USA 001 Multimedia Division Manager
Gallo Glass Company 001 Technical Manager
EBAY INC 001 SENIOR MANAGER OPERATIONS EXCELLENCE
ARLINGTON GETTY 1 FIRST LINE MANAGER
ZARA USA 1 GENERAL MANAGER DESIGN
FINANCIAL SERVICE VOL. CORPS 001 PROGRAM OFFICER
CREDIT LYONNAIS US BRANCH 001 SENIOR VP AND GENERAL MANAGER
Tri-Gem International, Inc. 001 Business Manager
RAJOLIEH ENTERPRISE INC 001 MANAGER
CIT Group Inc. 001 Senior Vice President
MILLENIUM NEW YORK PARTNERSLP 001 PRESIDENTEUROPEAN BANKING DIV
Ramco Bloodlines Ltd. 001 Business Manager
S K NEW YORK, LLC 001 VICE-PRESIDENT
Sony Corporation of America 001 Business Manager
American Express TRS Co. Inc. 001 Manager, Underwriting
BUTTER AND EGGS 001 ASSISTANT MANAGER
Celadon LLC 001 General Manager
Freyr Associates, Ltd. 001 President
CHAZAL LLC 001 General Manager

The FLC database is for 10/01/2000 to 9/30/2003. CA has 9280 H1 applications in this 'Managers and Officials' category in this period. NY has 8352. Almost all of them are listed as certified.

So either tens of thousands of H1 applications for management positions are being processed nationwide, or Sony, Ebay, Phillips etc are somehow managing to slip all of these under the radar.

That may be true for middle management, but running a company doesn't require much specialized knowledge. As an example, Jim Barksdale, who was the CEO of Netscape, came to Netscape from FedEx and McCaw Cellular. Quite different businesses. No specialized knowledge of computer technology necessary.
Click to expand...

You keep repeating that argument, but I've never seen a USCIS document that claims that. The specialized knowledge that Barksdale has is clearly management of large companies and startups.
 
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JoeF said:
Maybe. I have a lot of discussions in a lot of different threads.
Click to expand...

http://boards.immigrationportal.com/showthread.php?t=119645

Hmm, that's not what I said. I said that CIS usually does not approve such cases.
And, the data shows LCA applications at the DOL, not H1 applications nor H1 approvals at CIS/INS. So, it doesn't provide what I asked you to provide.
Click to expand...

You are certainly entitled to your opinion Joe.

It is pretty obvious to me that:

(a) tens of thousands of H1 LCA's are being certified for management positions.

(b) there is no evidence that these are denied once they get to USCIS. I know from personal experience of several H1's in management positions, including myself. My attorneys Latour and Lleras didn't mention this issue either when I just renewed my H1 for a management position at a very small company. So it is not impossible to get an H1 for such a position.

(c) there is no official statement of the USCIS that indicates H1's are not available for management positions.

Preparing an H1 application for a management position may require more care in order to clearly point out the specialized knowledge required. As I said to the original poster, contact a good immigration attorney.
 
consulting for same company as FT job on H1B

Hi--

I am posting this question again in this thread, as it seems to go with the theme.

Here is my situation: work for a non-profit academic organization; right now, I am doing part-time research, part-time work as a pharmacist for same employer on 2 h1-bs (separate one for each position). LC was filed for pharmacy position and approved. My I-140 is pending; opted for CP.
In a couple of months, I am transferring full-time to work as a pharmacist again for same employer. The employer proposed that I continue my research work as a consultant. So, in effect, I would work FT + I would do consulting for the same employer. Is this kosher?

Thanks.
 
to JoeF

JoeF:

As usual, your answers are very instructive. Thank you very much. I do have 2 H1Bs right now (1 for research, 1 for pharmacy) for same employer. From your answer above, it sounds like I should be able to continue FT as pharmacist and part-time in research as an employee (i.e., not as a consultant ). Am I correct in my interpretation of your answer? Also, do the H1Bs need to stipulate that one is for full-time (in case of pharmacy) and the other one is for part-time (in case of research)? If so, do I need to obtain new H1Bs (since my percent involvement in both positions will change in October)?

Thank you tremendously for your generous help.
 
JoeF

Thanks again for your generosity. Just out of curiosity then, is a non-immigrant not allowed to consult while living in the US period (i.e., there is no special type of visa for this scenario), or is there another type of a visa an H1B holder could apply for to cover the consulting business?
 
JoeF:

Wow, to both points on 'body shops' and no visa for non-immigrant consultants. I'm glad I asked. One learns a new thing every day.
Thanks for the help.
 
JoeF

Sorry one more thing on the same note. I just realized that a couple of years ago when I was working on a TN, I accepted an honorarium ($1500) for a talk I gave at a conference. I claimed this payment on schedule C for that year's income tax. How big a point of contention could this be at my CP interview?
 
JoeF

...when I said TN, I meant Trade NAFTA visa. I switched to an H1B one year ago. Just a clarification.
 
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