Port h1b or ead to own new company?

P

Pato58

New Member
Hi Folks,

My employer will shut my company down at the end of this year.

I am on a H1B visa, expires on 4/2010. At that time I'll have been 9 years on it because of the last 3year extension based on my pending AOS.
My I 485 was received in 7/2007. My priority date 11/2005. My I 140 EB3approved in 4/2006. EAD approved until 10/2010.

I don't have time to find a new job with same or similar duties and title.

I am planning on starting a corporation or LLC to continue the business in January 2009 where I'll be hired with the same title and duties as currently.

Questions:

-Am I better off porting my H1B visa or my EAD to the new company? The EAD expires later than the H1B? What are the pros and cons of each choice?

-Might I face some issues because the new employer, my company, is new without any business history? Could the fact that I am the only shareholder of the corporation be an issue -like I am self employed?

-Is a job offer from the new company enough to take care of the AC21 portability or should I actually start operations and get paid a salary asap?

-If a job offer is enough, can I just start running the operations when my AOS gets approved and stay unemployed until then?

I thank you in advance for your recomendations.

Pato
 
Pato58 said:
Hi Folks,

My employer will shut my company down at the end of this year.

I am on a H1B visa, expires on 4/2010. At that time I'll have been 9 years on it because of the last 3year extension based on my pending AOS.
My I 485 was received in 7/2007. My priority date 11/2005. My I 140 EB3approved in 4/2006. EAD approved until 10/2010.

I don't have time to find a new job with same or similar duties and title.

I am planning on starting a corporation or LLC to continue the business in January 2009 where I'll be hired with the same title and duties as currently.

Questions:

-Am I better off porting my H1B visa or my EAD to the new company? The EAD expires later than the H1B? What are the pros and cons of each choice?

In Your Case EAD is the Best option. There is a provision available under AC21to start ur own company.

-Might I face some issues because the new employer, my company, is new without any business history? Could the fact that I am the only shareholder of the corporation be an issue -like I am self employed?

You might not, because you will file AC21 with all details abt your own company. but you should be working for an employer when your 485 is adjucated and you need an experienced lawyer.

-Is a job offer from the new company enough to take care of the AC21 portability or should I actually start operations and get paid a salary asap?

-- Hopefully should. Again consult your lawyer.

-If a job offer is enough, can I just start running the operations when my AOS gets approved and stay unemployed until then?

When you are in AOS, it is not necessary you have to work but you should work while it's adjucated.

I thank you in advance for your recomendations.

Pato
Click to expand...

The above Quotes are only my suggestions and understanding of the existing rules or Conversations. Please take your decision after consulting with an experienced lawyer.
 
pato,
getting an h1b for a start up is not easy, especially when you (spouse) is sponsoring you.
As far as EAD, you working for your own startup company can raise questions to CIS. If you comr under an audit your AC21 can be in jeopardy. Best to do is to find a similar job or wait till you find one. If you passed 6 months on 485, you can take your own time finding a similar job. ofcourse you can do part time work in your company(but not full time)
 
Desi,

Does "transfering my H1B" to the new company mean applying again for it or just maintaining the one that I have?
What would be the ground to put my AC21 in jeopardy? I'd meet the required similar duties and title, 180 days waiting for AOS, similar salary.

Please let me know the reasons for potential problems so that I can check them out.

Could you help
 
Even if you are transfering H1b they have to ensure that the new company is valid and pass through same eligibility criteria as previous one. H1b visa petition belongs to employer and right now, we are seeing very thorough screening by CIS.

In AC21 you can port jobs but of same title and duties. However, when the primary beneficiary himself is the sponsor, CIS could easily audit the AC21 request. Normally people don't send any papers to CIS during AC21 until CIS notify them with an RFE. By then you can switch to another genuine emplyer. if you want to do that way,may be they won't notice it. But remember you are taking BIG risk in your 485.
 
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So you mean that I'm better off joining the new company with my EAD instead of the H1B transfer.
The new company is for real and genuine, will generate revenues, it will take over the business of my current employer who wants to shut it down at the end of the year.
Do you mean that the CIS could deny my 485 based only on the fact that I am a shareholder of the company I work for, although I am fine with the other requirements (similar duties and title, compensation)? If it is the case, how do they know who owns the company and also would it be less risky to have a friend be the major shareholder of the new corporation?
 
Pato58 said:
So you mean that I'm better off joining the new company with my EAD instead of the H1B transfer.
-------------------better option is to join new employer with H1 transfer and then invoke AC21. USCIS can ask for the ability to pay from Company.
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i am in the same shoes

Hi, pato, how are things working out for you?

i am on H-1b, with 140 approved and 485 pending 180 days. things went on ok.

However, i am very likely to get a contract of my own. the project is very intense and requires my full time on it. so i may have to start a new business. it is a great opportunity of career.

I have registered a LLC last year, now, i am considering using AC21 to sponsor myself. but not sure about the risk to do so.

i don't have EAD, but H1.

Would like to know your case a bit. really appreciated if can shed some light on my dilemma.
 
You can also get your I-485 approved if you are self-employed

susi_babu said:
but you should be working for an employer when your 485 is adjucated
Click to expand...

Susi, are you sure about this?

Attorney at law Ron Gotcher answered this very question in his AC21 portability and self-employment FAQ:

Q: I've been self-employed for a while under AC21, and now my Priority Date has become current.
To received the Green Card, do I need a job offer from a US employer, or can I continue my self-employment?

A: You may continue to be self-employed or you can go back to being an employee. The key is continuing to work in the same or similar occupational classification.

imminfo.com/Library/AC21_issues/AC21-portability-self-emplyment.html
( this may also work: imminfo.com/Library/AC21_issues/AC21-portability-self-employment.html )
 
kminer said:
Susi, are you sure about this?

Attorney at law Ron Gotcher answered this very question in his AC21 portability and self-employment FAQ:

Q: I've been self-employed for a while under AC21, and now my Priority Date has become current.
To received the Green Card, do I need a job offer from a US employer, or can I continue my self-employment?

A: You may continue to be self-employed or you can go back to being an employee. The key is continuing to work in the same or similar occupational classification.

imminfo.com/Library/AC21_issues/AC21-portability-self-emplyment.html
( this may also work: imminfo.com/Library/AC21_issues/AC21-portability-self-employment.html )
Click to expand...
If the USCIS asks the Ability to pay can you provide evidence of enough funds of your company? to join new employer is better and tested option.
 
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