Yes, you can start a company on H-1B — with the right structure. This guide explains what’s permitted, what’s not, and the practical setups founders actually use (concurrent H-1B, cap-exempt + concurrent, full transfer). We’ll also cover employer-employee control, prevailing wage/LCA, work authorization traps, and a 90-day founder plan.
TL;DR
- Owning a U.S. company is allowed on H-1B. Working for it requires its own H-1B (primary or concurrent) with a bona fide employer-employee relationship — the company (or independent board/agent) must have the right to hire, pay, fire, supervise, or otherwise control your work. No true self-petition.
- Concurrent H-1B lets you keep your day job and work for your startup — each employer files its own petition/LCA.
- Cap-exempt + concurrent: If you hold (or obtain) a cap-exempt H-1B with a university/affiliated nonprofit/research org, your startup can add a concurrent, cap-subject H-1B that doesn’t outlive the exempt job.
- No unauthorized work: No “volunteering” or 1099 side gigs for your own for-profit startup without H-1B approval for that employment.
- Portability & grace period: You can start at a new H-1B employer upon proper filing (portability), and you may have a 60-day grace window after job loss to file changes.
What You Can Do vs. What You Can’t
Allowed, with structure:
- Passive ownership (invest, be a shareholder) without performing services.
- Work for your startup if your startup files its own H-1B (primary or concurrent) and truly controls your employment (e.g., independent board with authority to discipline/terminate, W-2 payroll, real supervision).
- Concurrent H-1B (nights/weekends or part-time) — separate petition + separate LCA and prevailing wage for the startup role.
Not allowed (without approval):
- Self-employment without a bona fide employer-employee relationship (no genuine right-to-control).
- “Volunteering” at your own for-profit startup (treated as employment).
- 1099 consulting for your own company or others unless that company is your H-1B petitioner and the role matches the certified LCA.
The Three Common Setups (and When to Use Them)
1) Concurrent H-1B at your startup (keep your day job)
- Your employer keeps you on H-1B. Your startup also files an H-1B (often part-time).
- Good for testing traction while staying compliant. Each employer files its own petition and LCA.
2) Cap-exempt + concurrent to bypass the lottery
- Hold (or obtain) a cap-exempt H-1B (higher-ed, affiliated nonprofit, nonprofit/government research org). Your startup adds a concurrent H-1B that is valid only while the cap-exempt job remains valid.
- Who qualifies as cap-exempt (statute & guidance): higher-ed; nonprofits related/affiliated with higher-ed; nonprofit/government research orgs.
3) Full transfer to the startup (primary H-1B)
- Your startup becomes your sole H-1B employer.
- Requires strong employer-employee control (independent board/officer), ability to pay prevailing wage, and a specialty-occupation job with real supervision and deliverables.
Compliance Checklist (Don’t Skip These)
- Employer-employee control: Independent board/officer with authority to hire/fire/supervise you; board minutes & bylaws help.
- Specialty occupation: Role requires a bachelor’s or higher in a specific field; detail duties & required degree(s).
- LCA & wage: File ETA-9035; pay at least the prevailing wage for the location/level. (DOL requirement, incorporated in H-1B rules.)
- W-2 payroll: Pay as an employee of the H-1B petitioner; equity alone doesn’t replace wage obligations.
- Worksite changes: Moves to a new MSA generally require an amended H-1B (Matter of Simeio).
- Portability: You may start with the new H-1B employer once a non-frivolous petition is properly filed (don’t wait for approval if timing matters).
- Grace period: Up to 60 days after job loss (or to petition end date, if sooner) to file a change of employer, status, or depart
Founder Playbook: 90-Day Action Plan
Weeks 1–3 — Structure & Story
- Incorporate; appoint independent directors/officers with real control over your employment.
- Draft a specialty-occupation job description (duties → degree fields → why).
- Decide path: Concurrent vs. Cap-exempt + concurrent vs. Full transfer; map wage, hours, and location(s).
Weeks 4–6 — Paper & Payroll
- Prepare LCA (location-accurate); set up W-2 payroll at or above prevailing wage for the startup role.
- Assemble board minutes, bylaws, employment agreement showing right-to-control.
- If moving locations or changing duties materially, plan for amendments (Simeio).
Weeks 7–9 — File & Launch
- File the concurrent or transfer H-1B (consider premium if timeline-sensitive).
- Use portability to start after proper filing (if applicable).
- Stand up I-9, public LCA file, and HR compliance.
Weeks 10–12 — Operate Clean
- Track actual hours & duties to match the LCA/petition.
- Add locations carefully; file amended petitions when needed.
- If you’ll pursue a green card later, keep artifacts (org chart, revenue, hiring) to support EB-1C/EB-1A/NIW pathways.
FAQs
Can I own 100% of the startup and still get H-1B?
Ownership alone doesn’t bar H-1B, but USCIS focuses on employer-employee control. Many founders use an independent board/officer with real authority over their employment to establish control.
Can I work nights/weekends on the startup without filing?
Not for a for-profit startup. Performing services is “employment.” You need a concurrent H-1B for the startup (with its own LCA/wage).
What is H-1B portability and how does it help founders?
If your new H-1B employer (e.g., your startup) properly files a non-frivolous petition, you may start working before approval under AC21 “portability.”
How does cap-exempt + concurrent work?
Hold a cap-exempt H-1B (e.g., at a university/affiliated nonprofit/research org). Your startup files a concurrent, cap-subject H-1B that can only remain valid while the cap-exempt job remains valid.
What happens if I’m laid off while building my startup?
Most H-1B workers get up to a 60-day discretionary grace period (or until petition end date, if sooner) to file a change of employer/status or depart. Portability may allow you to move to a new H-1B during this window.
Do location changes for my startup role need an amendment?
Usually yes if you move to a new MSA that needs a new LCA — that’s a material change under Matter of Simeio. File an amended H-1B before the move
