OPT, H1 and LLC
I would very much appreciate if appropriate knowledgeable person can answer this:
Currently I am on OPT, which is expiring on July 3rd 2004.
My brother is a green card holder. Last year in April 2003 we formed a LLC (Limited Liability Co.) with my brother as the sole member and me as a manager. The name of the company is say XYZ LLC.
1) XYZ LLC plans to hire me as an employee and sponsor me for H1-B. The H1 quota has already been filled for 2003. So, XYZ LLC will apply for H1 in April 01, 2004 for starting work date on Oct. 01, 2004. My OPT expires in July 3rd 2004 and the H1, assuming approved, will begin from Oct 01, 2004.
a) Will my immigration status be “illegal” or “legal but not allowed to work” for the period from July3rd to Oct 1st?
b) Should I apply for B1/B2 by the end of June for 3-6 months?
2) A hypothetical case:
a) i) If XYZ LLC applies for my H1 on July 3rd, rather than April 1st, will my immigration status be legal until approval/rejection of H1 application by the USCIS, even though my OPT expires on July 3rd?
ii) The idea here is XYZ applies for H1 on July 3rd on a regular processing. It should normally take 3-6 months to get approval/rejection notice from USCIS. If I will be considered to be on legal status (not allowed to work) from the date the application is received by the USCIS (i.e. July 3rd) then I will not have to apply for B1/B2 even after my OPT expires. By the time I receive the confirmation from USCIS for my H1 approval (assuming I receive approval later than October the 1st) I will continue to be on legal status. Am I right?
3) Limited Liability Company (LLC) member and H1 related:
a) If I am one of the member/owner of XYZ LLC, can XYZ LLC sponsor me for H1? Based on legal tax laws related with the employment tax status of working LLC members-
“LLC members who work for the LLC are normally not considered employees for tax purposes even if they are paid salaries. It follows that payments to members are not considered wages (rather, payments to these working members are considered guaranteed payments or payments of the member’s distributive share of LLC profits). However, members who are actively involved in LLC operations must normally report all moneys received from the LLC as self-employment income.”
How will LLC members working as an employee be considered for H1/immigration purpose (employee or owner)? If owner, can the owner apply for H1 from the same company (LLC)?
b) Will my having a majority share in XYZ LLC make any difference to H1 processing for me?
c) Based on my knowledge, the owner of the company need not go through the Labor Certification process for Green Card. If I can be on H1 and at the same time be a member/owner of the LLC then it will save my time when I process my green card though XYZ LLC (partnership LLC) in the future as I can then skip the labor certification process. Am I right?
Thank you.
