L1 to GC for a private business owner

P

Prasun Kapoor

New Member
My brother in law is in US on a L1 Visa. He has a registered company of his own and has applied for green card privately.
He has received a RFE on the I140 case asking him for turnover of his company, his tax returns, number of employees in his company and so forth. He has a diamond business, and does not have employees..

On what basis does the INS decide if someone like this who has a very small business eligible for Green Card.

If someone can shed some light on the factors at play here, I would greatly appreciate it. And if you could CC: yr response to prasunk@yahoo.com .. it would be great.

Thanks,
Prasun
 
Some details , please

Please give some details.
Is it possible for L1 to have own company without violating the status?
Is it possible to sponsor yourself a GC from your own company?
I am curious, I am on L1 too.

Thank you and good luck.
 
Yes to both questions

It is possibloe for an L-1 to own the company and not violate status. Yes, it is possible to sponsor yourself for a GC through the company you own, BUT ONLY UNDER CERTAIN CIRCUMSTANCES.

If you own a company and are interested in doing this it would certainly be a good idea to spend the money and go through an attorney.

Jim

James D. Mills
Attorney at Law
http://www.geocities.com/jamesdmillsesq/
 
No Title

Thanks Jim for the response.

When I said my Brother in Law applied for a GC on his own, I did not mean without an attorney. What I meant was, he is the owner of a company and also the only Employee. He holds a L1 of his own company.. he is a small scale diamond merchant.

After the GC application, at I-140 stage the INS has come back asking for details like "turnover of the company", "number of employees" etc. So if he replies saying that the turnover is $500,000 and number of employees is 1, is this going to hurt his case. So is there a minimum eligibility in terms of turnover and tax returns etc for a company owner to apply for a GC?

What ofcourse is suspect here in this case is the ability of the lawyer he has retained for his GC application and now he wants a second opinion on what to do..

If you could shed some more light on this.. it would be of great help!!

Best Regards!
 
What category was his GC applied under?

He may qualify for a GC that does not need a labor certification. It sounds as if INS is looking at the employer\'s ability to pay the offered wage. I\'m sure that his attorney can give better case specific information than anyone on this board.

Jim

James D. Mills
Attorney at Law
http://www.geocities.com/jamesdmillsesq/
 
when?

Dear Mr.Kapoor

I am in same situaton....Please let me know when they asked about turn over...during I 140 or I 485 ?

My I -140 is cleard. filed I 485.

best rgds
 
No Title

This is in the I-140 application stage itself.

Its still not clear to me, if a self employed business man, who basically has a one man business, can apply for a GC for himself??
 
L1 visa for self-employed (sole trader)

Hi Guys,

I am planning on some structure and was researching the net on L1 for a good attorney where I found this forum and decided to join in.

I am from the UK and putting a structure together for myself as a “sole trader” and wonder if L1 will work for me!

I am also hoping a good lawyer sees this and joins in!

Basically, I too know people who have started L1 and got through their green card through L1 very much along your scenario. For L1 to work though one needs to have been employed by a foreign affiliate for a year who hen starts a US operation and applies for L1 for its CEO under EB1 category, no labour cert! Why? In my mind, because this is foreign money being invested, if the INS insisted on employing somebody else then the foreign corporation will pull its investment!

Imagine this scenario:

1. Foreign corporation capitalised by the applicant, pays the applicant salary for a year.
2. Then the foreign corporation starts a US corporation say for a capital of $250k
3. The US corporation being a one man band makes a profit of say $10k per annum, so after 5/6 years it has $300k in the pot before wages
4. This means this US corporation can afford to pay a salary of $50 p.a. to its employee (the sole trader) over 6 years duration of L1

I want to ask you guys, this is foreign money coming to US and being distributed to the L1 employee who has to pay income tax on distributing his own capital! I don’t see why the INS should have any ground to object to this set up. The questions regarding turnover and number of employees are commercially irrelevant unless the US or its parent company were financially unstable.

Another point referred to in this topic is what about the offshore parent company. It obviously can’t trade much because the sole trader is in the US under his L1. Some lawyers argue that it is enough for the offshore company to be in existence to control its subsidiary, it does not have to trade much if at all! If any lawyer reads this, I like to hear their views.

Finally, I have found L1 the least regulated of the visa categories (no doubt to attract foreign investment to the US) but it has made this visa full of fright for me, so many “IFs and BUTs”!

Love to hear from anybody with practical experience or opinions.

Kind Regards,

Freddie
 
L1-Visa for self employed

I am a small business owener who is currently going through this process, so thought I would add my input. I did my own L1 visa application (without an attorney) and also my initial I140 but enlisted an attorney when I got an RFE on the I140.
The big thing to remember is that the INS
typically uses this category for large corporations, so small business tend to be an exception and therefore are regarded somewhat with suspicion. With this in mind you must have an overwhelming number of documents to back up your case.
It is my understanding that both the offshore and the local company must be operational. The INS calls for financials primarily to show that the company can afford to pay the "executive or manager" a relevant wage. The other big issue for a one man business is to show that he operates as a manager or executive. The INS wants this to be his PRIMARY function and is not satisfied that he just has this authority. For example a one-man doctors practice obviously holds all the executive and management powers but the INS will regard his primary function as being a doctor, not an executive or manager!
The INS seems to be stricter on this for the I140 than they do for L1 applications.
Finally, if you start a new company in the USA you will only be issued an L1 for one year initially and will not be able to apply for a Green Card in that first year. The US operation must have been active for at least one year - one way around this is to buy a small US company.
 
L1-Visa for self employed

Dear Candem,

Thank you so much for your input.

1. I found your point about "the doctor" analogy most interesting.. I guess it would have helped if the doctor had employed a nurse or a secretary, right?!

2. In your experience, what would the INS regard as small company? Would you say a "group capitalisation of say $500k, with $250 in the US, would be too small for the INS?

3. I wonder what basis the INS will have to argue a prevailing wage argument for the executive given DoL and labor certification is not involved. I would have thought as long as the wage is not rediculously small, then it should be OK. Is a wage of say $50k be big enough!?

Appreciate your views again. I find it most comforting to speak to those who have or are doing the same thing!!

Thanks again,

Freddie
 
No Title

Answers to your questions ( from my perspective ;-))
1. Even if the doctor employed a nurse or secretary the INS will still argue his main function is being a doctor. Remember that the INS is used to large corps so they want to see this person doing strategic planning, signing agreements, planning and deciding on the direction the corporation will take, etc. Now most owners of small businesses do all these things, the point is to emphasise them for the INS and de-emphasise the other everyday functions.
2. The size of the company from a financial standpoint is only relevant as far as its ability to pay the salary - it need not even make a profit if you can show that the offshore entity has sufficient financial backing.
3. My attorney\'s view on this was that around $60k was what the INS would expect an executive to earn - and that is what I had used in my original application. You can always pad with "plus bonus and commissions" as they will always be related to how well the company is doing.

Sorry for taking so long to answer this.
 
You must log in or register to reply here.
Top