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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 95071
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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Hi, I am an Australia Entrepreneur working in the USA on an

Customer Question

Hi, I am an Australia Entrepreneur working in the USA on an E-3 Visa. I have recently learnt that I can legally form an LLC, implement a board of directors, then apply to work with my own LLC. Is this correct? Apparently two Australia’s have already done this successfully (as per the link here: http://www.geoffmcqueen.com/2011/09/28/e-3-visa-for-australians-how-to/).
As I am now on my 3rd E-3 Visa, and have been in the USA since 2009, and am about to finish my MBA from Babson College, my hope is to register the LLC today, and transfer my current E-3 visa from my current employer (that still has over a year left on the visa) to my own LLC. If the board is implemented formally, and the offer of employment is signed by the board, doesn’t that then make me a regular employee? It just so happens that it’s my own company?
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Hello and thank you for using our service. My name isXXXXX and I am a licensed attorney and will try my best to help you. I just ask for two things: 1) Before you sign off, please remember to rate me positively as that is the only way that I am paid and your question does not close after you rate me so I can still answer additional questions without additional charge if you have follow-ups even weeks or months later; and, 2) IF I have bad news for you, please remember I am only the messenger. When you rate me, it is my service to you that you rate, not whether the news is good or bad. I will try my best to give you a solution, but sometimes the law does not have a good one.



How much money do you plan to invest in the new company?


Do you own a company outside of the U.S.?


Are you looking to get U.S. Lawful Permanent Residency in the future?
Customer: replied 1 year ago.

The company will be financed with cash, approximately $25,000. I am a very skilled Software engineer (I currently hold the title of Director of Engineering in my Start-up) and am already about to sign my first client. Concerning the minimum prevailing wage ($65,000 / year for a programmer) it comes to $5,416 / month, so that's 5 months of survival even If I do not get a single drop of revenue which it extraordinarily unlikely.

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Well, that may not be enough. Are you going to set this company up and live in a big city with a high cost of living or in a small city or town with a low cost of living?
Customer: replied 1 year ago.

I am planning living in the suburbs of Boston (where I had lived for 2 years before moving the Georgia...where I currently live). I have my lease in Georgia until October, but I was looking to just bunk with some room mates ($300 / month) ... since I'm a Bachelor and unmarried.

Customer: replied 1 year ago.

Do you own a company outside of the U.S.?


 


No.

Are you looking to get U.S. Lawful Permanent Residency in the future?


 


Yes, but I understand that the E-3 is also a non-immigrant temporary visa and therefore I need to transfer to an H1B...which is hard. But at this time I'm only concerned about either the LLC. If I can do it, i'll do it, but if not, i'll just continue with regular employment.

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Well, I think that may make a difference. I am going to give you the perspective of U.S. immigration so that you can understand the pitfalls in this situation. You won't like it, but I have to tell you the truth of the matter to keep you out of trouble and I hope you understand this.

Technically, what you are planning to do is possible, but the U.S. perspective is different. The work visas available are not to help you. They are to help the U.S. Specifically, they are to help U.S. companies that cannot find U.S. workers because none are available or willing to do certain jobs and the non-U.S. workers are supposed to be paid the same as U.S. workers because if they could get paid less, then the U.S. companies would rather employ non-U.S. workers than U.S. workers. Now why do I tell you this? Because when you present your plan to USCIS, the officer reviewing the case will have that mind set. That officer will be thinking, "Ok, how does this help us, the U.S.? Will he be creating jobs for other U.S. workers, not just himself and maybe his family? With such a small investment, he can barely support himself. What makes me think that he just won't go belly-up in 6 months?"

So while technically you can do what you are planning, the chances of denial are high. You should have more money or at least be prepared to dazzle the officer with a business plan that shows that you would be successful in less than 5 months and even better, that your business will create jobs for U.S. workers within a year or shortly thereafter. If not, the chances of approval I don't think will be high.

So try to get more money as an investment and set up a great business plan to show that you will be putting U.S. workers to work very soon.


Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance. Even after you rate the service, I can still answer additional questions for you without additional charge. If you do rate me positively, a bonus is always appreciated. If you would like to request me in the future, just go to http://www.justanswer.com/law/expert-guillermosenmartin/. Thank you!

Customer: replied 1 year ago.

Okay, but the point of confusion I'm having is that the company has to prove this right? Which so happens to be owned by me. If the LLC was in someone else's name e.g. A life-long friend, would that make the situation easier?


 


I understand the piece about the minimum wage (i.e. The minimum prevailing wage) which can be found here for the company:


 


Finding your position can be a bit tricky, particularly if you’re a founder – you do everything in your company, right?! You can search the database at http://www.onetcodeconnector.org but for what it is worth, I did a bit of searching to find something legitimate/accurate and not too highly priced (as per the next step). I found that “General and Operations Managers”, which has a SOC code of 11-1021 was pretty good




If I meet the minimum would that be okay? Additionally I plan to hire American citizens within the first few months anyway, If I make that very clear would that help my cause?


 


Also, what kind of investment would you expect to see the company have?

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Yes, and no. Yes, the company has to prove it and no, it would not make much of a difference if someone else owned the company.


And yes, if you meet the minimum requirements for the specialty occupation and salary, that part would be satisfied. But that doesn't mean that an officer would be convinced that such a small investment will be enough to pay your salary and generate enough business to employ enough Americans.

As far as what amount, that's hard to say, I would say probably $100,000 to $200,000 to have the best chance of success.


Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance. Even after you rate the service, I can still answer additional questions for you without additional charge. And don't forget that bonuses are always appreciated! Thank you.
Customer: replied 1 year ago.

Do you have any other advice concerning other ways I could convince the officer that it will be successful?


 


I am registering for Software consulting LLC...of which it is very very easy to sign new clients and get revenue. I am already about to sign my first client but just need to LLC first, is there anything you would suggest here?

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Probably for you to move to a place that has a very low cost of living which is why I asked that in the first place. If you want to a very small town in a state, maybe in the mid-West, the prevailing wage might be significantly lower in that area and your cost of doing business would be much lower and perhaps a $25,000 would be more feasible. Please do not forget to rate me positively. Since I am not paid a salary, it is the only way that I get paid. You are not charged again and I will not abandon you after you rate me positively if you have additional questions. Thank you.
Customer: replied 1 year ago.

What I were to select a role within the company the had a lower prevailing wage? like an "operations manager"? that has a prevailing wage of only $40K/year?


 


Additionally would financial projects help? or clients? or board member backgrounds?

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
All of that would also help, but keep in mind that the E-3 does have requirements as well. So the position have to be within the definition of specialty occupations. You can look at this link if you like:

http://canberra.usembassy.gov/e3visa/qualifying.html



Please do not forget to rate me positively. You are not charged again and I will not abandon you after you rate me positively if you have additional questions. In other words, even though it may say that your question or transaction will close when you rate me, that isn't accurate. You can still ask additional questions without additional charge as long as you make it on the same message thread. Thank you.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 95071
Experience: 10+ years of experience in various aspects of U.S. Immigration Law.
Guillermo J. Senmartin, Esq. and 3 other Immigration Law Specialists are ready to help you
Customer: replied 1 year ago.

Additionally, when you say “small town” do you mean register the business in a small town with a low wage (low cost of living)? That would then mean that I could live anywhere in the states right?

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Thank you so much for the excellent rating. Yes, you could live anywhere in the U.S. For example, if you picked a small town in North Dakota or South Dakota, that would probably have a very low cost of living. Here is a link with an interesting article:

http://www.kiplinger.com/slideshow/real-estate/T006-S001-10-cheapest-u-s-cities-to-live-in/index.html

Customer: replied 1 year ago.

But could I register the business there and live in Massachusetts? i.e. telecommute?

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
You can register the business almost anywhere, like for example, as on that webpage you gave me, Delaware, but if you are just thinking of having it look like on paper that you are in that small town, that's not going to work. The business must be physically set up, the workplace must be set up in a small town in order for that plan to have any possibility. In other words, you would need to be working in that small town to be able to use the prevailing wage of that area as well as the low cost of living in that area.
Customer: replied 1 year ago.

Would you attempt this in your opinion?

 

If I give very good financial forecasts?

If I give Show cash in the bank?

If I hire myself as a programmer (a low prevailing wage)?

 

But most importantly...If I get rejected....will that hurt my chances of getting another regular job in the states?

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Honestly? I wouldn't. For one simple reason, unemployment in the U.S. is very high and the U.S. would love nothing more than to free up jobs for U.S. workers. So I would not give them any reason to deny you and want to look into your current E-3 status. If you can prove you had enough money to make the business work and to create jobs for U.S. workers soon, then you would have a much better chance.
Customer: replied 1 year ago.

But most importantly...If I get rejected....will that hurt my chances of getting another regular job in the states?

Customer: replied 1 year ago.

What if I registered the company in Australia and continued to work here in the states under an E-3 for another company. Would that work?


Additionally, what if were to live in the states on the Visa Waiver program and go back to Australia every 3 months (to reset the visa waiver), would that work? Then when the company has enough revenue just then transfer the company to the USA?

Customer: replied 1 year ago.

???

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
If you maintain your current status under your current E-3 employer and you are denied a new E-3 status through your own company, you would fall back on your previous E-3 and you just can't start working for your own company. And as long as you do not have any gaps, you should not hurt your chances of getting a different status in the future if you qualify.

As far as setting up a company in Australia, that's possible too, but you cannot receive any income or compensation for any work that you do for that company in Australia from any U.S. source and of course if cannot interfere with your current E-3 employment.

And as far as your last comment, you are not supposed to be working at all while on the Visa Waiver and at some point they will stop you from entering if they feel you have been spending too much time in the U.S. on the Visa Waiver.

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