Hi 2bornot2b,
"So the plan is to hire a permanent resident/GC to carry out the
actual work for the subsidiary, i would just act as a founder and do
some voluntary chores. Can i be the founder of the subsidiary of the
Indian company in US
while maintaining my legal H1-B status with my present employer ?"
Yes, sure, as long as you don't work for the company and receive any
kind of compensation for that work, all will be well (it can't be an
S-Corp). Doing a bit of volunteer work, like running a few errands, is
ok but wait until after you've hired the employee. Don't go overboard
with your volunteer work either. Always remember that your priority is
to remain in-status with your H-1B, so follow your instincts. If you
feel that you are doing things that you really should be paid for,
then stop!
"There are no prohibitions under U.S. immigration law that would
prevent an individual who is foreign - indeed, someone who has never
set foot in the U.S., from serving as an incorporator, director, or
officer of a U.S. enterprise. Similarly, it is possible for
partnerships, limited liability, and other forms of organizations to
include members who are not U.S. citizens, residents, or in
non-immigrant status. It's the "working" the business that is
prohibited."
http://www.usvisanews.com/faq/business.shtml
Can you start your company, while on an H-1B?
"Yes, you can. But you can't form an S-Corporation. For that you have
to be a citizen of USA. There are multiple ways of starting your own
company, but one of the most effective one is by incorporating
"Limited Liability Company" ( LLC ). You can find lots of companies on
the net which can do this. They may charge you around 150-200$, and
the procedure may take few days. LLC can be a "Partnership Firm" or
the liability protection as a "Incorporated Company". You can be the
Chairman or Director of the board, but you can't work for it, unless
you have an H1 visa issued from that company. But, you can always hire
a CEO for the company, who has a work permit (Green card or Citizen
etc.)."
http://path2usa.com/immigration/h1bcorner/h1b_tips.htm
"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 USCIS or DOL to work for the particular
venture or 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. "
http://www.murthy.com/startup.html
"A foreign business entity may, similarly, wish to file an H-1B
petition and directly employ a person in the U.S. in H-1B status
without going through the expense and trouble of incorporating a U.S.
subsidiary corporation. Such employment is permissible under two
scenarios. First, the foreign business may establish a simple "branch
office" business presence in the U.S. and obtain an IRS tax
identification number for the branch office. A tax or accounting
professional can help with that process and provide advice as to the
ramifications of then establishing a regular U.S. subsidiary
corporation. Or the foreign business may authorize a U.S. "agent" to
file the petition on its behalf. Among other considerations, a
petition filed by a U.S. agent is subject to the condition that the
agent "must guarantee the wages and other terms and conditions of
employment" of the beneficiary."
"In such cases care must be taken to examine the foreign national's
role in the enterprise, and the petitioner must be prepared to explain
how it retains the ability to "hire, pay, fire, supervise, or
otherwise control" the work of the employee named in the petition. So
long as that test can be met there is no prohibition on the foreign
national beneficiary of an H-1B petition being an owner, founder,
partner, or other major stakeholder. Where the foreign national is a
co-founder and owner of a start-up company, for example, it is
recommended that he or she hold less than a majority stock interest so
that he or she is theoretically subject to the "control" of the
corporate entity."
http://www.ilw.com/articles/2002,0819-Lester.shtm
I was glad to work on this for you. If you have any questions, please
post a clarification request and wait for me to respond before
closing/rating my answer.
Thank you,
hummer
Some Google search terms used: h1b h-1b start form own business corporation
volunteer work uscis temporary worker founder subsidiary u.s. |
