Ep. 5 What are the requirements to have a successful self-employed H1B case?

Raw Transcript:

Introduction: You ask we answer your immigration questions. Simple. And now your host immigration lawyer Jacob Sapochnick.

Jacob: This question comes from Alex from San Francisco and Alex is asking a few questions. The first question Alex is asking is what are the requirements for successful self-employment H1B2 to happen.

Well Alex as I mentioned in previous videos, the new policy came out in August of 2011 relaxing the rules about employer-employee relationship standard for H1B self-employment. What you’re really looking for is some sort of a board of directors in the company that will relieve the H1B employee from taking decisions. If we can show that kind of board now whether activities are and how they’re relieving the H1B employee from taking major decisions it may be possible to setup the company this way for a successful H1B self-employment.

The second question Alex is asking is whether it’s possible once the H1B is approved to proceed with a green card application for the same company that actually sponsor the employee’s own company. Once again Alex, this is a good question. It’s still kind of a grey area.

The reason it’s complicated is because unlike the H1B and this new policy when you go ahead and file for a green card under the traditional PERM Labor Certification process, the fact that you are the owner of the company could be an issue. In fact it is a question on the [ETA 1999 00:01:35] and so it’s very difficult to know what would happen when labor department will find out that you are the owner of the company and you’re sponsoring yourself.

It may be possible if we convince them again using the board, using any documents that could show that there is a clear separation between the employee who is now the owner of the company and he does a technical role in the company and somebody else in the company who’s in charge of hiring and firing and making decisions, who’s going to work in the company. If you can answer that balance it may be possible to still get a green card through a self-employment H1B but at this point it’s very unclear what are the chances of this to succeed.

So the third question that Alex is asking is what are the requirements to keep renewing the H1B visa once I get it approved as a self-employment owner? It’s a good question Alex.

The requirements are the same for like any other H1B visa approval, you have to maintain salary requirements, you have to pay the [preventive 00:02:33] wage, the company has to maintain good records, being able to grow and maybe hire workers. So it’s just same requirements just like any other H1B company.

Final question that Alex is asking what if the H1B visa gets denied? Base on self-employment what are my options? Well, the options are simple. You can file a motion to reopen or appeal the petition if you have enough evidence to show that you were … had all the requirements to get this visa approved. You still can file a motion to reopen or appeal your case and hopefully get a favor with [decision this way 00:03:04].

Closing: Thank you for listening to the Ask My Immigration Lawyer Podcast, the show that’s dedicated to answering your immigration questions. Simple as that. See you next week for another round of questions and much needed answers.

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