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Judith
Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 24248
Experience:  34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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I am planning to move to the USA I applied for H1B but this

Resolved Question:

I am planning to move to the USA
I applied for H1B but this lottery system does not work for me.
Than I asked my immigration lawyer to look into L1
As an employee that is sent to the USA it is easy
An owner/operator hast to jump through all kinds of hoops.

If I would sell my shares in the company and be just an employee that is sent to the USA to set up a branch of the company, is that legal?

My current lawyer stated: I cannot pursue this strategy on your behalf, because I see it as an attempt to circumvent the immigration law. My bar license does not allow me to do this.

Is this true?
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Judith replied 1 year ago.

Hello,my name is Judith. Thank you for this opportunity to answer your questions.

Will the business continue to operate abroad?

Have you been employed by it as CEO for at least a year?

Who is telling you it is easier as an employee?

 

Judith

 

Customer: replied 1 year ago.

Hi Judith,


Yes, the company will stay active abroad. I am planning to come to the US to develop my business back home.


 


This has been my company since 2002 or there about


 


My immigration lawyer told me that. She wrote


 


I have done some more research on your matter and am willing to assist you in applying for the L-1. I cannot guarantee its success because the L-1 is not intended for individuals who are self-employed. I have found that an owner and executive of a foreign corporation for the past year can obtain the L-1 to open a new branch or affiliate in the United States. Under these circumstances, the initial L-1 Visa will only be valid for one (1) year and you would have to apply for an extension thereafter. Extension of status is sought by filing a new Petition for Nonimmigrant Worker.


As an owner or major stockholder of the company, the petition must be accompanied by evidence that your services are to be used for a temporary period and evidence that you will be transferred to an assignment abroad upon the completion of the temporary services in the U.S. 8 C.F.R. § 214.2(l)(3)(vii). We will have to explain that you will have a new assignment abroad/that you have plans for your successor in the U.S. position. Evidence of your international business practices can help establish this.


“Proof, beyond a simple affirmation, when the employer is owned by the transferee and the transferee will be the operator of the United States company may consist of evidence establishing a record of corporate transfers, relocation of high-level personnel, or anticipated future events which will affect the reassignment of the owner/operator outside of the United States. The petition of a corporation seeking to classify an alien beneficiary as an intracompany transferee will be denied where the beneficiary is the owner and major stockholder of the petitioning company and the company fails to demonstrate an intention to employ the beneficiary in the United States for only a temporary period.”


 


If the beneficiary is an owner or major stockholder of the company, the petition must be accompanied by evidence that the beneficiary's services are to be used for a temporary period, and evidence that the beneficiary will be transferred to an assignment abroad upon the completion of the temporary services in the United States. In other words, while a petitioner for an L classification generally need submit only a simple statement of the facts and a listing of the dates to demonstrate the intent to employ the beneficiary in the United States temporarily, where the beneficiary is the owner/major stockholder of the petitioning company, a greater degree of proof is required.1 Immigration Law Service 2d § 4:515


For the L-1, you must prove the following:


1) You are an individual who has been the owner and executive/manager of a foreign corporation for the past year and wish to transfer yourself to the States to set up an affiliated office of your foreign owned corporation.


2) You intend to leave your foreign corporation intact, and in continued operation. The foreign company must continue to do business abroad during the entire period of stay in the United States as an "L-1" Intracompany transferee. This fact must be fully documented at the time of the initial filing, and upon each visa petition renewal application.


3) You intend to employ yourself in a managerial or executive role in the new United States subsidiary.


4) Your United States subsidiary has a reasonable business plan to establish a need for a manager within one year. You must show that at the end of the first year of operations, your subsidiary will employ United States workers for you to manage who will be needed to help you produce your products or services. L-1 visa applications for a start-up enterprise require evidence related to the business and revenues of the foreign entity; the qualifying relationship between the foreign and the U.S. entity; and a detailed business plan explaining the potential of the new entity and its capability to meet business expenses, including the staffing requirements. In the case of a new business, evidence that within one year of approval of the L-1 petition, the U.S. operation will support an executive or managerial position as documented by a description of the following: the proposed number of employees and the type of positions they will hold; the size of the United States investment and the financial ability of the foreign entity to remunerate the L-1 beneficiary and support the U.S. company's conduct of business; and, the size and staffing levels of the overseas company.


Rasheed Allen can assist you in preparing proposed business plan, as he has already set up the subsidiary for you. Please let me know if you would like to move forward on this – if so, I will have our intake department contact you so that you can sign a retainer for the L-1 visa as opposed to the H1B. Also, I apologize for the confusion and if you have any questions, please let me know.


==============


Then we thought of the idea of selling my shares, becoming a regular employee and be sent to the US because the requirements for an employee are a lot less strict.


 


My lawyer now says she could loose her license if she helps us knowingly

Expert:  Judith replied 1 year ago.
How many employees does the company have abroad?
How many are you intending on hiring in the US to expand the business here?


Judith
Customer: replied 1 year ago.


At this moment I have a company that I run by myself. I have a partner in another company and a parttime employee.


 


On our sister Island Curacao (I live in Bonaire, lesser Antilles) I have a partner that is setting up our business. When I come to the US I will need to hire somebody to take over part of my job.


 


I have no idea how business will develop. Apart from exporting to the Caribbean, I want to start importing products into the USA from Europe and the Caribbean. For arguments sake say I want to hire 2 people in the next to years, a driver and someone to do my books

Customer: replied 1 year ago.

Not intending to rush you, but did you get my reaction to your latest questions?

Expert:  Judith replied 1 year ago.
Thank you for all of this additional information about your business and the business plan.
Unfortunately, the rules are the same for the start-up manager/director who is permitted to come for an INITIAL period of one year.
So whether you sell your shares or keep them, the burden of proof that the business has to show is the same for a start-up owner/director or employee/manager.
The primary problem with the concept you have going here is that the entire purpose of an L1 multinational corp is to come here to invest a substantial sum of money in the US economy to stimulate the employment of US workers.
So with your plan, a director being transferred here is to direct and develop the company for one year to the point where in the business plan US workers are hired on the management and administrative levels or in the alternative, an employee/manager is hired to "MANAGE" subordinate business development staff or production workers.
Hiring a driver is not going to work, that really has nothing to do with developing the business or production, etc. You will not be able to support the need for a full-time bookkeeper.
This is not a business plan/model for a successful L1 company.
In addition, the other issue is that there are not any employees in the islands other than you and a partner. The immigration will not see this as a real business unless it has a very substantial profit.
There are many L1 multinational corps whose owners/directors come here and get not only the one year L1A but also get that extended and get their green card as the multinational director.
An example of businesses that I have done range from restaurants who open branches here in the US; manufacturing facilities; fruit growers and exporters; flower growers, IT services.
You didn't say what industry you have in the Caribbean.
I just don't see this happening based on the size of the company in the islands and the marginal investment being made in the US.
That is where you will run into the difficulty more so than as owner.

Judith
Customer: replied 1 year ago.

Hi Judith,


Thanks for the explanation.


What I do not understand is that the text it says that the L1 is also ment for small and starting businesses


 


http://www.immihelp.com/l1-visa/


 


In the second paragraph it states that it provides small or start up companies abroad to expand their businesses and services to the US


 


What frustrates me is that a person with a bachelors degree, with a viable business is dependent only on an H1b Lottery ticket or an E visa where he has to invest at least $500.000.


 


The L1, according to your description, looks a lot like the E visa.


 


Further in the text available to me i see no investment requirements for the L1


 


Are there other options open to me that I have overlooked?

Customer: replied 1 year ago.

I overlooked a part of your response.


 


I own a wholesale company that caters to the hotels and restaurants on the Island. At this moment we are developing the purchase of full container loads to provide them directly.


 


I import seafood to both Bonaire and Curacao on a weekly basis


 


I own a company that sells amongst others IKEA products in Curacao and Bonaire.


 


Currently we are developing an export orders for prefab homes from the US in Colombia and St Kitts. Colombia is a Multi million doolar project


 


I represent an aluminum doors and Windows company and a hurricane shutter company from Miami


 


The development of all these products requires me to be in the US on a semi permanent basis.

Expert:  Judith replied 1 year ago.

I'm a bit more impressed with the extent of your trade and you may just have an opportunity to succeed here.

But you are going to have to develop a plan for the US business that ties in all of these various exports under an umbrella and which will need marketing and sales personnel.

You can direct and devlop the growth of the company and markets, but you will need to make the investment in human capital to work under you while you direct and develop the growth.

So there is the potential for the L1A as the owner/CEO to come here and increase your markets and products with an agressive business plan

There is nothing in the regulations on the amount of investment for any of the visas! However, the USCIS will only approve a petition that shows there is a vested interest in the US branch.

And as for the new or start-up business, yes this is true, but remember that is for the US company, it is expected that there is a history with the company abroad and that it is not a new or start-up business.

Judith

Customer: replied 1 year ago.

Thanks, XXXXX XXXXX given me some hope.


 


Does all of this need to be accomplished in the first year or can we stretch this over a number of years.


 


Are there other visa possibilities that make more sense with my background


 


 


\

Expert:  Judith replied 1 year ago.

You need to have a one and 5 year business plan.

You need to show that the business has hired US personnel (even 1-2) in the first year and that your skills as the CEO/Director are successfully developing the business so that the 5 year plan is feasible.

I would say this is the best visa option for you because it can lead to a green card. The E visa is a dead end.

Judith

Customer: replied 1 year ago.

Hi Judith,


This is the last one. Thank you very much for your help and insight. In one hour you have given me more to work with than my lawyer in the last couple of months.


 


Could you please forward me your info, so should the need arise, I can approach you for future cases.


 


Regards,


 


Henk

Expert:  Judith replied 1 year ago.

Thank you so much Henk. I appreciate your repeat questions but I cannot give you my direct information. It is a violation of JA terms of service to have direct contact with it's customers.

You can address future questions by starting the new thread with "FOR JUDITH".

I would strongly urge you to interview several business immigration attorneys when you come to Miami. You can find some and read their bios at www.ailalawyer.com.

Not all immigration lawyers have done Ls and start-up Ls are especially tricky.

Google "L1A start-up" You will find articles written by experienced L lawyers.

I think you have a shot at this.

Judith

 

 

Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 24248
Experience: 34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
Judith and 5 other Immigration Law Specialists are ready to help you

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