inside immigration information about marriage green cards and work visas in America
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by DANIELLE NELISSE, Immigration Attorney
Unlike many other countries, America allows each of its 50 states to have their own rules concerning the formation of companies. All of the 50 states allow foreign nationals to form an American company, whether the person lives in the United States or not.
Foreign nationals who are already in the U.S. working in H-1B visa status for an American employer may start up their own company. They can spend time after they are finished for the day working for their H1b employer legalizing their own LLC or Corporation and then obtaining a business license for their new American company.
The H1B visa holder is allowed to lease office space and hire Americans to work for their company. Their new corporation can also purchase an existing American company. For example, many Indian veterinarians have created new American LLCs or Corporations. Their LLC or Corporation then purchases one or more fully staffed animal hospitals.
After their company is operational, the H1B visa holder may accept profits from his own company. In other words, a foreign national may own an American company and collect the profits, but he cannot work as an employee for that company without work authorization.
When Can a Foreign National get an H1B Visa to Work for His Own Company?
The U.S. Citizenship & Immigration Service (USCIS) will not approve an H-1B visa petition unless they are convinced that the petitioning company is a legitimate company that will be able to generate enough revenue to pay an H1B visa salary. Normally a company needs to be operating for at least 6 months (1 year is better) to prove that it has enough clients and business to pay an H1B salary.
The USCIS can insist that an “employment relationship” exists whereby the employer (normally through its board of directors) has the power to “hire, fire, pay, supervise, or otherwise control the work of every H1B employee.”
Generally, it is hard to believe that the owner of an American company would fire himself. On the other hand, the USCIS agrees that a corporation is a separate legal entity from its owner. As such, the corporation can establish a valid employment relationship with its owner and pay salary, and benefits, through legal documents. Indeed, this is very common in American businesses.
When a business is incorporated, the founder can be considered an employee for tax, insurance, H-1B visa and other business purposes. Therefore, a corporation can sponsor its owner as an H1B employee so long as it follows all the H1B rules.
There is no law or regulation that sets any definitive standards as to exactly what type, degree or percentage of ownership is acceptable for approval of an H1B visa for a company founder. But as of May 1, 2015 there are specific questions on the new I-129 petition (see below) asking if the person being sponsored for an H1B visa owns part of the company.
The willingness of the USCIS to grant an H1B to someone who has part or majority ownership in the H1B sponsor company is based on whether they can prove that they are truly an employee that can be fired by the American company.
Even though there is no law regarding what percentage of ownership is acceptable, in cases where the prospective H1B employee has owned a majority interest of the sponsoring employer, the USCIS has taken the position that this may cast doubt on whether the employer has the ability to exercise control over the worker. A person that owns more than 50% of a company’s outstanding shares is considered a majority owner.
My conclusion is that the lower the percentage of ownership (ideally less than 50%), the higher the chance of getting the H1B visa approved.
Sponsoring Your Own Green Card
The biggest hurdle faced by H-1B visa foreign nationals is that the company they own (or that a relative owns) cannot sponsor them for an employer sponsored green card because there is a rule against granting green cards to the owner of a company (or even part owner in some circumstances).
For an employer to sponsor an H1B employee for a green card, in the majority of cases, the employer has to first go through a process known as “Labor Certification” with the Department of Labor (DOL).
To successfully complete the green card processing, the company has to prove to the DOL that it has attempted to find a qualified U.S. worker to fill the job opening by advertising for the position and interviewing all the job applicants. The DOL has to believe that the company was fair when interviewing the U.S. workers, and is giving the foreign worker a green card only because they could not find any qualified U.S. workers to work in the position for the salary offered.
It’s easy to see why the DOL has a hard time believing that there were no qualified U.S. workers when the person who will be getting the green card has a “controlling interest” in the sponsoring company. The company has to tell the USCIS which owners have a controlling interest (or at least some influence) on the company and this triggers a more strict than normal review by the DOL before approving the Labor Certification.
Many immigration attorneys will not agree to take this type of green card case even when a spouse, other relative, or friend owns the”controlling interest,” because the Labor Certification will probably be denied because of their influence on the company.
The law is such that the employee who gets the green card may not exert any influence over the Labor Certification process because it creates a conflict of interest concerning the U.S. worker interview process.
One of the forms used in the Labor Certification process, Form ETA 9089, (Question C5) asks: “List the number of employees in the area of intended employment.” Question C9 on Form ETA 9089 further asks for a “Yes” or “No” to the following question: “Is the employer a closely held corporation, partnership, or sole proprietorship in which the alien has an ownership interest, or is there a familial relationship between the owners, stockholders, partners, corporate officers, incorporators, and the alien?” If the employer indicates that it has less than 10 employees in C5 or if the employer states “Yes” to C9, the application will trigger an audit.
In the event of an audit, the employer must be able to demonstrate that the future green card holder has no influence over the company and that the existence of a “bona fide job opportunity” (that the job is available to all U.S. workers) exists, through the following documentation:
There is no clear definition of “family relationship” in the USCIS regulations. In past cases, relationships that caused the USCIS to disbelieve a “bona fide job offer” (real job offer) occurred when the foreign national were related to the owners by “blood,” had financial ties to the owners, were related by marriage to the owner, or had friends who owned the company.
Being an investor or having some sort of relationship with the employer does not create an automatic bar against establishing a “bona fide job opportunity” but it does give rise to greater scrutiny. The government examines the “totality of the circumstances” when determining whether or not the job is a “bona fide job opportunity.” Examples of factors considered by the government are:
In general, only 75% of Labor Certification cases are approved nationwide (including cases where the employee is not an owner) and no immigration attorney can guarantee success in a particular case. There are so many minute details necessary for successful green card processing — in the end it is up to the discretion of the U.S. government.
IMPORTANT 2015 UPDATE: The I-129 H1b application (called a “petition”) now requires that the employer answer this question (Page 13, Question 7): Does any beneficiary in this petition have ownership interest in the petitioning organization [the employer]? If yes, please explain.
If at all possible, a foreign national should try not to take the risk of having any ownership interest in a company that is going to sponsor either their H-1B visa or their green card (permanent residence).