Is there a way for someone on h1B to start a company in a roundabout way by doing something like placing company shares into a trust and having a unpaid board seat? Is that pushing luck? Not for me but a friend who I had plans to go into business with but we're facing a chicken or egg problem until she gets a green card or changes her visa status.
There are ways for someone in H-1B status to start a company and not in a roundabout way. The approach will depend in part on whether she will leave her current employer and get an H-1B through her startup, stay with her current employment and get a concurrent part-time H-1B through her startup, or just stay with her current employer and somehow work on her startup.
> or just stay with her current employer and somehow work on her startup.
The first two options make sense but this latter option sounds like a risk. As I understand it, she can't earn any active income from this startup unless see has an I-129 for it. A share grant counts as income.
I mean, yeah you can work on a side project in your spare time that could become a business, but the moment employment and active income enters the picture that becomes something else.
Why don't they just start a company in the country where they are from or why don't you start a company with someone who is a citizen or has a green card?
The entire premise of your question is misaligned with the intention of the H1-B visa. Yes, everyone abuses its intent, but that isn't justification for more people to find more ways to abuse it. The abuse of that visa (and other visas) is why folks just want it abolished outright. I guess the purpose of a system is what it does, but it was sold to the American electorate as a way for companies to get access to talent that they simply cannot find domestically.
Trying to use the H1-B to hire a very specific person instead of any person with the skillset needed for the role would be in contradiction with the labor market test (LMT) needed for PERM status.
An H1-B can only work for the employer on the I-129 petition. There are some forms of passive income allowed but to placing shares in a trust and having an unpaid board seat just seems like an attempt to cheat the process because ultimately the goal is for her to work for this startup. Doing what your proposing puts a target on her head where anyone that is anti-H-1B can report her to USCIS and get her deported.
Moving home, working remotely and then applying for an L-1 seems like the correct approach here for what you're trying to do.
I am not sure if your questions were rhetorical or not but I don't think you want them answered. I am happy to explain the situation though. She did not take a visa to circumvent the law, she has been here for years and we came up with this idea a few months ago. It's not remote applicable. So everything you said is true in a legal sense but it's unlikely any of it happens and now there is a very large fee for new applications so it's a very high risk to move back and then reapply. The reality of startups is at first they may not make enough money to support an H1-B so we're not sure how to make enough money to get her one without already having done work. I don't think this violates the intention of the H1-B it just creates a situation where starting a startup is very murky but working at a large firm is fine. I am not sure the intention of the law was meant to bias in favor of H1-B only benefitting large corporations.
