What are the possibilities for someone currently working in the US
with an H1B visa to found his own company. On www.usavisanow.com I
read the following:

"I am currently on an H-1B visa and I don't like the idea of just
working for one company. Can I incorporate a company and file a
petition to transfer my H-1B visa to my own company?

Yes you can. Keep in mind however that the INS will not approve the
petition unless they are convinced that the company is a real,
legitimate company and will be able to generate enough revenue to pay
your salary (at least the prevailing wage).

The INS will want to see a business plan (including pro forma
financial statements), copies of contracts with client companies, and
a business lease, among other things before they approve the
petition."

Later they say:

"Can an H-1B Holder start their own company and work for that company?


Yes, an H-1B Holder start their own company and work for that company.
In order for the person on an H1B to work for their own company, the
person is usually required to obtain a concurrent H1B approval to work
for their own company, in addition to the present employer.

However, non-permanent residents (such as H-1B visa holders) may not
own the shares of an S corporation."

Can somebody point out any legal references regarding this issue? Is
this the investor's visa and if not what is that and how could it be
used? Can another company hire an H1B holder who is suppose to build
up a new division in this company (however, clients did not sign
before a certain basic structure of that new division has been
created)?

What kind of legal structure should the business then have, if the
visa holder can not own shares of an S corporation (does that mean he
can found the business but is not allowed to own it??)?

If that is easier than building an own start-up, does the hiring
company has to prove again that the position can not be filled with a
US citizen?

Any clearification would be greatly appreciated!

Hello and thanks for your question.

     The Immigration and Nationality Act is the law that governs the
admission of all foreign nationals to the United States.  You can read
or search the text of the law at
     IMMIGRATION AND NATIONALITY ACT
http://www.ins.usdoj.gov/lpBin/lpext.dll/inserts/slb/slb-1/slb-21?fn=document-frame.htm&f=templates&2.0
     The rule about retaining your H-1B visa status is that although
you may change H-1B employers without affecting status, your new H-1B
employer must file a new Form I-129 petition for you.  If the change
in employment means that you are working in a capacity other than the
specialty occupation for which you originally petitioned, it is a
status violation.
     H1B Frequently Asked Questions 
http://www.ins.usdoj.gov/graphics/howdoi/h1b.htm#must
     You will want to make sure that the new employer (whether or not
it's a company that belongs to you) is a genuine, operating company,
since the new Form I-129 that the company files will be subject to INS
scrutiny.  The portability provisions allow a nonimmigrant alien
previously issued an H-1B visa or otherwise accorded H-1B status to
begin working for a new H-1B employer as soon as the new employer
files an H-1B petition for the alien. Previously, aliens in this
situation had to await INS approval before commencing the new H-1B
employment. These provisions apply to H-1B petitions filed "before,
on, or after" the date of enactment, so all aliens who meet this
definition can begin using the portability provisions
     Changes to the H-1B Program
http://www.ins.usdoj.gov/graphics/publicaffairs/questsans/h1bchang.htm

     

Additional Links:

     H1B Portability
http://www.schulzlaw.com/mschulz_h1gen.php#h1portability

     Immigration Law Center
http://www.visaus.com/qualify.html


Google Search Terms:

     "h1b" visa INS

     h1b portability



     Of course, this answer is not legal advice that you can rely on. 
It’s just what I was able to discover about the subject by searching
Google.  You should consult an attorney before making any decision to
quit your current job!

---

Clarification of Answer by richard-ga on 18 Jun 2002 00:51 PDT

You also asked what kind of legal structure should the business then
have, if the visa holder can not own shares of an S corporation.

An S corporation is a corporation that is exempt from US income tax
(its profits are taxed directly to its shareholders on their personal
income tax returns).  But an alien cannot be an S corporation
shareholder, so you don't qualify for these provisions.

You are permitted to organize and own a standard corporation (one that
is subject to US corporate income tax), sometimes called a "C
corporation."  Or you could organize and own a limited liability
company ("LLC")

Thanks for this vast amount of useful links. This gives me plenty of
material to study. Thank you very much.

This link might add a liitle more info to what you know:
http://immigration-law.freeadvice.com/small_business_immigration.htm