Employee-leading-to-partner contract

Statin_doc

Registered Users (C)
A close friend is changing employers, while waiting to file I-485, but I-140 approved. Being from India, he cannot file for I-485, but Imm attorney says he can change jobs.

With new employer, he can be a partner in the future, but it will be some sort of a buy-in process. For a year, his gross earning will carry a guarantee from the local hospital.

a) Obviously he has to be employed first - nobody actually gets to be a partner in a successful ongoing enterprise. Has anybody gotten other experiences? How tough is it to satisfy LCA conditions in non-waiver areas?

b)What sort of contract language will satisfy scrutiny of DOL/ BCIS? Does it have to carry an exact dollar figure that has to be paid? Or just a guarantee -with provision for actual collections generated by a physician will be enough? What sort of contract language do US Grads or GC-holders carry in similar situations?

c) What other pitfalls should he watch out for?

Gurus, everybody please comment.
 

hadron

Registered Users (C)
> a) Obviously he has to be employed first - nobody actually
> gets to be a partner in a successful ongoing enterprise.

In physician groups, it is not uncommon to work for a year or two as an employee and then to buy into the group if the existing partners vote you in.

> Does it have to carry an exact dollar figure that has to be paid?

Yes. I assume that he will be working on H1b, for that you have to get a straight salary.

> Or just a guarantee -with provision for actual collections generated
> by a physician will be enough?

It has to be a salary. For an H1b it is not allowed to have the salary dependent on collections, tips or commissions. The minimum salary has to be independent from collections, but there is nothing that says you can't get a bonus.

> What sort of contract language do US Grads or GC-holders
> carry in similar situations?

Physician contracts are complex, anything from 11-40 pages for a regular private practice job. Don't see how anyone could squeeze that into a bulleting board post. It is allways a good idea to hire a contract attorney for the negotiations.

> c) What other pitfalls should he watch out for?

There are limitations on how much of a corporation you are allowed to own if this corporation sponsors you for immigration benefits (I believe it is 5%). In a large >100 partner group, this is not a problem. If you join 2-3 other guys, you have to be careful.
 
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Statin_doc

Registered Users (C)
Thanks, for your helpful advice.

I have already stressed to him about getting a Contract attorney. Everything will be kind of complex with the Hospital being a party to the contract. The group is a 6 doctor practice with extensive allied interests in practice-enhancing ventures, but they have no experience in Imm matters.

How tough is it to get H-1B approved in non-waiver areas? Imm attorney told my friend that would be the major stumbling block. Would he also need to go thru another LCA (PERM) prior to filing the new I-140, or the one LCA with H-1B be enough?

I am waiting & watching this with interest as I will reach the same point in the future!
 

hadron

Registered Users (C)
> The group is a 6 doctor practice with extensive allied
> interests in practice-enhancing ventures, but they have
> no experience in Imm matters.

Who does ?
Your friend needs two good attorneys. One for the immigration stuff (and in this case not your usual H1b shyster), and one for the physician contract and partnership contract issues. And above all, both have to talk to each other to come up with a watertight solution.

> How tough is it to get H-1B approved in non-waiver areas?

The problem with H1bs these days is that the quota is ridiculously low. While the politicians are talking about p##### 12 million greencards away to dishwashers and grape pickers, the quota for trained professionals is 50.000. If I remember correctly, the H1b numbers for FY07 are already used up.
Universities and certain non-profits are exempt. So if your friend was employed by the hospital directly, there would be a chance to get a cap exempt H1b.

> Would he also need to go thru another LCA (PERM) prior to filing
> he new I-140, or the one LCA with H-1B be enough?

I think you are confusing some things here:

- LCA labor condition application: a piece of paper you can get from the department of labor within a couple of hours certifying that the job description you gave them and the salary you gave them match. This piece of paper is a condition for an H1b visa.

- PERM labor certification: a drawn out process where DOL certifies that there was no american to do the job. This is a condition for a green-card.

Yes. For a new I140, your friend will need a new labor cert (as he wasn't able to file his I485 due to retrogression. otherwise he might be able to use one of the job-change provisions of AC21)
 
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Statin_doc

Registered Users (C)
Thanks hadron

Thanks a ton, again!

The problem with H1bs these days is that the quota is ridiculously low.

He is already on H-1B, so a change of employer may not matter in terms of the quota - or will it?

Thanks for clarifying my nomenclature, and answering the point about LC. So, a new Labor Cert will be needed, :rolleyes: . LC was a bummer for me last time - once the lawyer rejected recruitment as inadequate! My friend also went with RIR, but smoother than mine!

I have heard that PERM is much simpler now. Is that true? Anybody recently went thru PERM LC in a non-waiver area?
 
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hadron

Registered Users (C)
> He is already on H-1B, so a change of employer may not
> matter in terms of the quota - or will it?

I believe that this is correct.

> once the lawyer rejected recruitment as inadequate!

That means your lawyer did what he gets paid for. Half of the low-end immigration lawyers out there would have filed the case with insufficient documentation and charged you an arm and a leg once you have to fight the denial.

> I have heard that PERM is much simpler now. Is that true?

Yes and no. It is faster, but the employer has to go through some sort of documentation beforehand which drives up expenses. It is something set up with big employers in mind, not the small 2 physician practice hiring a third.

As for the complexity of the process itself, it is basically a RiR on steroids. The employer recruits and then promises to the goverment that everybody who applied was given a fair shot at the job. The penalties for certifying incorrect stuff are pretty high and a good number of cases are pulled for audits to keep the companies straight.
 
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m_img

Registered Users (C)
hadron said:
>
There are limitations on how much of a corporation you are allowed to own if this corporation sponsors you for immigration benefits (I believe it is 5%). In a large >100 partner group, this is not a problem. If you join 2-3 other guys, you have to be careful.

After getting Green card, what is safe period to become full partner. I know it is recommeded to stay with the same employer six after the Green Card. Should the same logic apply to becoming full partner, i.e. six months after getting Green Card?

Thanks,
 

hadron

Registered Users (C)
> After getting Green card, what is safe period to become full partner.

[Scratch head]

Never looked at the question that way. I don't know at what point the goverment stops to care about your ownership status in your employer. If you buy into the corp, you clearly express your willingness to work permanently for that company. What more does the goverment want ? I think you would be safe the day your I485 is approved, your intent to stay with the company is the only thing they might look at 5 years later, you are still with the company it shouldn't bother them. And typically, you get most of your income as partner on a W-2 as salary to avoid double taxation (depending on the corporate structure), so the main documents they typically look at are the W-2s.
 
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