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Law Educator, Esq.
Law Educator, Esq., Immigration Law Answer Team
Category: Immigration Law
Satisfied Customers: 110577
Experience:  Immigration Law Expert
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This is actually of my friends. He is on H1B right now with

Customer Question

This is actually for one of my friends.He is on H1B right now with a company X.
He is also a founder of another company Y.
His I-140 application is declined because his school where he did his MS does not have accreditation now.His thoughts are below. He wants to see if his thoughts are valid and doable.
(1) Get out of ownership of company Y, i.e. relinquish ownership of company Y.
(2) Transfer his H1B from X to Y. So at least he will start working for company Y as H1B worked though he will no longer part of ownership.
(3) Then re-file for I-140 either of :
(a) with 5+ years of experience worked INSTEAD OF MS degree.
(b) EB-1 [ABC] category. THIS IS WHERE MOST OF THIS QUESTION LIES. Please see below.Are there any possibilities to file under EB-1[ABC] categories?
What kind of actions a candidate can do ( if not already done) and prepare a file strong enough to file under EB-1. In his opinion EB-1 is the only option to get I-140 approved, so he can re-join to Company Y ownership.
He is aware some of his distant friends got I-140 approved in one of the EB-1 classes though they are no better than him, for example EB-1C as managerial role. If he gets his H1B approved under Company -Y he can hold top management role before applying for I-140 if that is even any possible legal way to apply under EB-1C.Any thoughts please?
Submitted: 3 months ago.
Category: Immigration Law
Expert:  Law Educator, Esq. replied 3 months ago.

Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

If he can meet the criteria of the EB-1 for extraordinary ability as required, then getting out of his ownership of Y and working as a manager for Y whereby Y would apply for the transfer of his H1b, would be one way of doing this. If he is no longer an owner of Y, then they can sponsor him just like any other employer could sponsor him for a new H1b. He would need to have the top management role only AFTER he gets his visa, because he cannot be working for Y without an approved work visa (unless he works for them outside of the US).

Customer: replied 3 months ago.
I am sorry for late reply. I know you and I encountered many of my questions in the past. Thanks again for taking this question.
Basically the depth of the question is, given his normal and regular computer science experience it is rather difficult to support 'exceptional ability'. So what he would like to learn from a person like you is, 'Anyway to circumvent that?' or 'Anyway to build that exception ability including but not limited to becoming a top management role in Company Y (after due process of changing his H1B to Company Y) as fast as possible?'. If this exercise will take another few years to write a text book or do exhaustive research in the field of expertise and publish them, then there is not whole lot of gain in pursuing EB-1. Suppose he follows due process to:
(1) Get out of ownership in company Y
(2) Gets his H1B transferred to company Y
(3) Takes up a management role in company Y
(4) Now can he file EB-1(c) under rule of top management role? ( my personal understanding is iffy. the reason is it calls for multi-national company top management role). This is where an experts knowledge will help him.This is likely to be last followup question on this.Thanks again for your help.
Expert:  Law Educator, Esq. replied 3 months ago.

Thank you for your reply.

Unfortunately, there is no real way to circumvent the process. However, companies pretty much have a free hand to explain why he is integral in management for their company which satisfies the exceptional ability. So it comes down to how good of job that Company Y does at explaining why his experience in the area and also with the company and the company clients are integral to the success of the company.

If he gets out of the ownership of Company Y and Company Y applies for his H1b transfer, then they need to explain how he is necessary for their operation and that is how he gets the approval through the EB-1

Customer: replied 3 months ago.
As I told that is my last question. I will just check with my friend one time and will complete/rate this question.Thanks for your consistent help.
Expert:  Law Educator, Esq. replied 3 months ago.

Thank you for your reply.

Your friend is not in an easy position with the difficult immigration laws, but if he no longer owns Company Y and they can justify why his skill and knowledge is necessary for continuing to run the business, they can get him his visa approved under the EB-1 criteria because he would still be essential for that business.

Customer: replied 3 months ago.
Your last answer is very encouraging. That one answer may necessitate a direct phone call with you. But let me update him. He is paying for this question anyway. Again thanks a lot. You are super.
Expert:  Law Educator, Esq. replied 3 months ago.

Thank you for your reply.

I cannot represent him, so understand that, his company will have to get a local attorney to assist them to get the visa approved.

Customer: replied 3 months ago.
That is understandable. The phone call if happens is to make him feel comfortable with possible solution and he can hire one of the local or nationally recognized attorney.Thanks
Expert:  Law Educator, Esq. replied 3 months ago.

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