I am on H1B visa. I want to start an LLC/C-Corp in the state of Georgia. Problem is that I am not an US Citizen and on H1B Visa (which limits me to "work" for only the company that sponsors my visa). I am considering an option where I would register the C-Corp (get an EIN using my SSN). But then I would only be passive investor/owner(shareholder). I would appoint another Manager/officer(US citizen) to run the day to day transactions. Would I be in violations of my H1B rules? Will I face a problem later on for GC Processing? I will have my SSN tied to the EIN, also I will not include the profits from C-Corp on my tax return(profits will remain within the business). Will USCIS or DHS look negatively at this and deny GC later on? Is having "ownership" in my C-Corp construed as being involved with "managing" my C-Corp?
1 Answer from Attorneys
You will find the following excerpt helpful from the FAQ section of our website:
CAN I SPONSOR MYSELF FOR THE H-1B VISA CATEGORY?
You must be sponsored by a "U.S. employer." What if you are the employer in the form of a company that you establish? USCIS regulations define employer as "a person or entity...who engages the services or labor of an employee to be performed in the United States for wages or other remuneration."
Since the H-1B petition must be approved prior to commencing employment, and it is difficult, although not impossible, for a "paper" company with zero employees and no income to be considered an employer capable of sponsoring an H-1B beneficiary, the dilemma to overcome is establishing a company with enough viability to be approved by the USCIS without technically being employed in the interim. One way to remain within the law is to establish a company with the help of other investors. The most conservative position is to be only a "passive investor" as opposed to exercising substantial decision-making power in the company. An individual cannot be accused of being employed without authorization if he or she is only a passive investor in the company that will sponsor him or her for the H-1B visa. To summarize, an individual cannot be "employed" in H-1B status until his or her employer petitions for and receives H-1B approval.
You have the option of calling our law firm at 212-268-3580 during business hours to arrange for phone consultation to discuss your case in more detail.
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