Start own business under AC21?

I

IK72

New Member
I am thinking about starting my own business, which should be possible according to the Yates memo, right? Is there anyone who has started his/her own business under AC21? Did your I-485 get approved without trouble?

Or has your spouse on EAD started a business and hired you?

Please let let me know about your experiences. Thank you!
IK72
 
Depending on what type of business it is this would be possible. If your wife hires you then u also have to make sure that your job responsibilities are the same as the ones specified in your LC. In my personal opinion this case might come under scrutiny and you be called for an interview but I might be wrong. Also attorneys do advise against relying on memos.
 
Last edited by a moderator:
Another option is your wife starts her own business and pays you via a 2nd consulting company who holds your H1B and runs your payroll, I think that would be a legal and clean way to do it. As always opinions are invited and I am personally interested in this myself.
 
From Immigration-law.com website:Q28

This might help you (see below).

Regards
GCStrat :)

From Immigration-law.com website:

Q-26 (12-28-05): I have applied for a green card in EB-3 category and my I 140 has been approved and my I-485 application passed 180 days. My wife is thinking about opening a company. She is a derivative beneficiary applicant for the green card. I have a good control on the contract and my client said they would issue the contract to any company that I name. Once my wife starts the company, I intend to port to her company. What are implications of working to start up company which is owned by derivative applicant and what kind of evidence USCIS can ask before they approve my case? Do you think my I 485 will be denied on ability to pay reasons? A-26: When you port after 180 days of filing of I-485, you do not have to prove that the new employer has a financial ability to pay the proffered salary. However, USCIS may turn around and indirectly pursue this issue by requesting evidence that the new employement was an "legitimate" offer of employment. It is a question of the existence of similar or same occupational classification and the financial ability to pay may be indirectly relevant. Such financial ability to pay issue may be overcome if the new employer establishes the existence of a legitimate job for the alien. USCIS cannot deny I-485 application on the new employer's financial ability of pay issue alone when there is an evidence that the new employer has a legitimate job for the alien. If you can enter into a good contract with the clients for your wife's or your own company, you can port to your own company. AC-21 portability is available even in the context of self-employment inasmuch as the following three requirements are met: (1) The new self-employment is in a same or similar occupational classification. (2) The self-employment is "legitimate" and there is indeed a bona fides job existent. (3) When I-140 petition was filed by your current employer, your employer truly intended to hire you for the offered permenent job once your green card is approved and you yourself also had the same intent to work for your employer once the green card is approved. When you have been working for the current employer for a number of years, it may be fairly easy to establish this requirement. However, when you are not currently employed by the petitioning employer, this third requirement will be a very challenging issue. All in all, if you can develop a solid business that requires your work similar or same to the I-140 occupational classification, you may be safe to port to such a self-employment type of business, provided that you should be prepared to provide all the aforementioned evidence once you receive RFE from the USCIS. For instance, if you are a computer consultant working at your employer's client site. For whatever reasons, the client does not want to continue doing business with your employer. The client is willing to give the contract to yourself for the same job. From the perspective of AC-21 portability, you may not anticipate too much problem. However, there is a potential issue of the breach of employment contract with your employer. Accordingly, unless either your employer consents to such change or there is no employment contract violation issue, such move will turn out to be very risky. Another illustration is an Interior Designer working for the current artichtectural firm that sponsored the I-140 petition. One can start his own interior designing business and provide a same or similar type of interior designing services to the clients.
 
For Employment based GC you or your spouse cannot own more then 5%
If you own more then 5% you need go to investor category. If your wife owns the company then you will fall into Family based GC.
Seeing all these things i stoped thinking about doing it.
 
I dont think there is a law which says that a derivative applicant who is on EAD cannot own more than 5 %. The law is if on EAD you can start your own business....simple and I dont think it changes the category or something. I did not understand the family category at all and I am totally unaware of it
 
You must log in or register to reply here.
Top