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Starting a LLC while on EAD

Discussion in 'Start up company issues' started by jag71, Jan 21, 2010.

  1. jag71

    jag71 Junior Member

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    Ron-

    I would like to know if I can start my own company (LLC). Here is my current situation - My wife and me are on EAD. We filed for our I-485 in July 2007 and still waiting for visa numbers to be current. Also, I have H1-B from my current employer. Because of the economic situation, it is most likely that my current employer may go out of business. I work in a specialized field and I may not be able to find a new employer easily. However, I do have few clients, who would like to obtain services from me. So, I plan on quitting my job (or when the company shuts down) and start my own. I have following questions and appreciate your response, at your convenience.

    1. Would it be of any benefit for my wife to own the new company and I work as an employee?
    2. Would you recommend, both owning a company or just my self?
    3. Either way, how do we take care of AC21 or I-485 application?
    4. If I work as an employee or a owner, the job I will be performing is similar to what is in my green card application.

    Thanks

    Jag
     
  2. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: Starting a LLC while on EAD

    There are two issues present in your question: (1) Are you allowed to set up and operate your own company; and, (2) will working for that company allow you to remain eligible for adjustment of status. The answer to both is yes. Anyone may set up or own a company in the United States. You may not work for your company, however, unless you have employment authorization that allows you to do so. In your case, you have an EAD that gives you unrestricted employment authorization, so it is very clear that you may work for your company.

    Since the work that you propose to do for your company appears to be in the same or a similar occupational classification as the job that formed the basis for your PERM, it appears that you will retain eligibility to adjust status under the AC21 I-140 portability provision in the law. The USCIS has stated explicitly that changing from your original sponsoring employer to self employment is perfectly acceptable, provided you remain working in the same or similar occupational classification.
     
  3. jag71

    jag71 Junior Member

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    Re: Starting a LLC while on EAD

    Ron-

    Thanks for your response and your confirmation is encouraging. I have another follow-up questions for you, related to salary. How does the salary amount come in to play when I own a company? I mean, lets say my Labor application has $80k annual salary and my current salary is $100k. When I start the company the salary (income) may be less than $80k or more than $100k, depending on new business income. Does this pose a real challenge in AC21? Also, the new company doesn't intend to have employees other than me for 1-2 years. Will this be a problem? My priority date is July 2004, EB-3 and I don't expect to see my green card before 2020, unless a miracle happens......your response is appreciated......

    Thanks
    Jag


     
  4. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: Starting a LLC while on EAD

    Within the context of an AC21 I-140 portability situation, the amount of the salary paid is not really important. What is essential is that you prove that you continue to work in the same or similar occupational classification. There is no requirement that you earn the same salary after you change jobs.
     
  5. ajay7728

    ajay7728 Member

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    Re: Starting a LLC while on EAD

    Ron how you deal with gaps in employment. Let's say someone just completed a 2 or 3 months contract and then got an RFE about employment verification letter. Is it still required to have an offer letter or new contract while replying to the RFE?
     
  6. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: Starting a LLC while on EAD

    There is no requirement in the law that you must work at all times while waiting for the CIS to adjudicate your adjustment application. The only requirement is that you have a credible, good faith job offer for qualifying employment when your status is adjusted.
     
  7. eb3row

    eb3row Junior Member

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    Re: Starting a LLC while on EAD

    Is it necessary to start LLC, or company in general, or you can work as a contractor (form 1090)?


    Regards,
     
  8. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: Starting a LLC while on EAD

    It is not necessary to form your own company unless you decide for reasons unrelated to immigration that this will benefit you. You may work as an independent contractor and receive a 1099.
     
  9. eb3row

    eb3row Junior Member

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    Re: Starting a LLC while on EAD

    Ron,


    I'll try to put up together my question.

    These are the conditions:
    1. If one works as a contractor on 1099 and is getting paid by his client (a company) monthly.
    2. The work is in the same occupational field or similar.
    3. It's been more then 6 months after I-485 was submitted.
    4. He does not work for any other company but himself (1099).
    5. He works outside USA (currently not residing in the USA).
    6. His status in USA is regulated and legal (H1B still valid and has work authorization).


    The question under these conditions would be:
    - Is getting a RFE under these circumstances going to jeopardize adjusting the status (getting the GC), having provided there is an available visa number and all other check-ups are done?

    ...or... if immigration starts asking questions, would the fact that one working outside USA , but on 1099 (will pay taxes to US at the end of the year), going to be a problem for getting a GC?


    Thank you in advance,
     
  10. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: Starting a LLC while on EAD

    The only issue that I see is the part about working from abroad. That could be a problem. Otherwise, I don't see any problems.
     
  11. martinmar

    martinmar Junior Member

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    Re: Starting a LLC while on EAD

    Ron,

    My I-485 has been pending since March 2008 and I had my EAD since May 2008. My category is EB3-ROW with priority date June 2004 and I am still working full time for the company which sponsors my green card. My postion at the company is a Software Engineer and this is the position used when filing labour certification.

    I have started my own company (S Corp) after I got my EAD and my company became very successfull.

    I know it is possible to port to your own company as long as the position is in the same occupation.

    My business is an online website where users can apply for jobs. I am working for my own company (I am on my own payroll) and maintain the website working with exactly the same tools and programming languages as in the sponsoring company. I also maintain financial books and do other business related tasks.

    Would this qualify as a simmilar occupation and do you think it would be safe to use the AC21 to switch to my own company and quit my current position at the sponsoring company?
     
  12. Ron Gotcher

    Ron Gotcher Attorney at Law

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  13. Dale1

    Dale1 Junior Member

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    G4 dependent w/ US work Permit-->Please advise if I can start my own LLC while on EAD

    Dear Ron,

    Thanks for the useful information !

    I am a G4 visa dependent with a US work permit (EAC) (My spouse is G4 principal holder). I would like to start my own company (LLC and/or LP) (perhaps 2 to 3 LLCs) as sole principal of the business. Basically, I will be managing my business by investing in it. To that end, I would like to confirm with you if this is possible, provided my G4 dependency status and that I got my EAC as self-employed.

    If this is possible, could you kindly provide which article(s)/clause(s) and regulation(s) specifically apply to my case as supporting documentation.

    Thank you again in advance.

    Best regards,

    Dale
     
  14. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: Starting a LLC while on EAD

    There is no one specific provision that says "X can start up his own LLC using his EAD." Sections of law have to be read in connection with one another and interpreted. If you want a very specific interpretation, either hire a lawyer to give it to you or go to law school.
     
  15. Dargo2014

    Dargo2014 New Member

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    Hi,
    I am in the similar boat now. Me (primary) and my wife (dependent) both have the EAD and I would like to set up a LLC and starting working for that one on W2 so in essence owner and working for the same company on EAD. I would like to know if someone did this in past and received GC without any issue. I am just hesitant to do this though this thread look encouraging.
    Please help.

    Thanks
     
  16. Ron Gotcher

    Ron Gotcher Attorney at Law

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    I see absolutely no problem with this - provided you continue to work in the same or similar occupational classification as that for which your PERM was granted.
     

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