Open Own business while I485 pending and Invoke AC21 under it

[sadhwani1]

Hey Guys,
Have been trying really hard to get this to work, originally planned to leave the country while I485 still pending, but guess that cannot work, now do you think that it is possible to open my own business in the country and invoke AC21 towards it, as employer will withdraw I140 once I resign, and keep the I485 alive. Now I could open this business under the same field. I140 approved May 2007, I485 Pending filed 09/14/2007, PD march 2005, rest of the world EB3 Category.
Your thoughts are highly appreciated

 

[ginnu]

Hey Guys,
Have been trying really hard to get this to work, originally planned to leave the country while I485 still pending, but guess that cannot work, now do you think that it is possible to open my own business in the country and invoke AC21 towards it, as employer will withdraw I140 once I resign, and keep the I485 alive. Now I could open this business under the same field. I140 approved May 2007, I485 Pending filed 09/14/2007, PD march 2005, rest of the world EB3 Category.
Your thoughts are highly appreciated

Read the AC21 MEMO. AC21 memo mention about self employment but I have not read any case approved or denied. I don’t recommend it(USCIS may ask ability to pay or other documents and this time many are getting RFE for more documents). Better to find same/similar job and then invoke AC21 if your new employer is ready to give you permanent job offer letter with same/similar job duties. you should go to your lawyer.

 

[DesiG]

Hi Sadhwani,

I just went through this recently - I grappled with this decision and paid big $$$ to talk to lawyers.

Bottom line is if you can incorporate and show that the company is making money, is a viable corporation with ability to pay and prospects of long-term prosperity, then the lawyer has a shot at making the case that the Yates memo applies and you (the employee) have a legitimate job offer from a US employer.

However, both lawyers (yes I paid 2 of them!) told me frankly that if they had to choose between me working for my own company and making tons of money vs. working for a legitimate company with other employees and making just enough to not raise eyebrows, they would choose the second option without fail (in terms of USCIS).

The thing to make sure (if you do incorporate) is that the company makes money and has a legitimate (preferably long term) client and you are doing the same or similar job duties as your labor. Keep in mind that it is expensive to open a company, and even if you have a client the paperwork, taxes, regulatory requirements and other inconveniences make it an extremely time-consuming and pricey proposition. And all that does not even include the other weighty issues - healthcare coverage, higher savings safety net etc.

It was a very tough decision for me. If you do not already have an employer, then it is not so much a decision as a risk, I guess.

But I would say - if you do not have a client lined up already, then this idea is pretty useless in terms of keeping your status because it would be pretty easy to prove its a bogus company. (And do you really want to butt heads with yet ANOTHER government agency - the IRS?) If you do have a client then you should seriously consider this option. If you have both a possible client and a regular W2 job offer, then it is a tough decision of money vs. hassles & immigration complications.

Good luck - let us know what you decide!

 

[Jackolantern]

What sadhwani1 is proposing is to incorporate a company in the US, but work outside the US for the company while the I-485 is pending. USCIS won't accept that. Employment-based green cards are for jobs to be done in the US.

 

[DesiG]

Oops

My bad - I misunderstood.

Yes, clearly the one-(wo)man corporation whose only employee is working outside the US is clearly a very big red flag for 485 approval purposes.

I do know people who work for Deloitte who live in the US on pending 485. They had a client in Canada - would go on short consulting gigs into Canada. They ran into some complications - the company had to finally make them work remote for a while, and then reassigned them. Not sure if the problem was US-side or Canadian work permit.