Buying a business with an illegal worker

[jonesmi 0]

I am looking at buying a cake decorating shop in Texas. I want to ensure that a particular employee stays at the shop. In order to do so, I was planning to form a partnership of some kind with her - probably an LLC. She is a Canadian citizen who is here as a dependent on her husbands TN visa. She is waiting for a green card, but evidently that has been going on for years. She has been working illegally for the shop for a year. My question is what kind of Visa would she need to get - TN or H1B in order to work for a business as a LLC partner. My other fear as that 'cake decorator' does not seem to qualify under the professions listed on the approved occupations lists. If there is an option, what is it likely to cost in lawyers fees and application fees and the duration of the process? Thanks for your help! All the information I have found online is pretty confusing so far!

[Boiler 45,402]

Under her own name, highly unlikely.

As a dependent, well that is down to her Husband.

[CoffeeBeans 1]

I am looking at buying a cake decorating shop in Texas. I want to ensure that a particular employee stays at the shop. In order to do so, I was planning to form a partnership of some kind with her - probably an LLC. She is a Canadian citizen who is here as a dependent on her husbands TN visa. She is waiting for a green card, but evidently that has been going on for years. She has been working illegally for the shop for a year. My question is what kind of Visa would she need to get - TN or H1B in order to work for a business as a LLC partner. My other fear as that 'cake decorator' does not seem to qualify under the professions listed on the approved occupations lists. If there is an option, what is it likely to cost in lawyers fees and application fees and the duration of the process? Thanks for your help! All the information I have found online is pretty confusing so far!

If she is a Canadian citizen, she can probably set herself up as an independent consultant, get a TN and come work for your company, until her green card comes through.

TN application is not complex, you probably can handle it yourself or get an attorney which is unlikely to be very costly. You can read all about TN including fees and processing times here.

In any case, you should treat the answers found on this board as informal tips and not regard them as golden legal advice.

Cheers

[Dakine10 5,452]

If she is a Canadian citizen, she can probably set herself up as an independent consultant, get a TN and come work for your company, until her green card comes through.

TN application is not complex, you probably can handle it yourself or get an attorney which is unlikely to be very costly. You can read all about TN including fees and processing times here.

In any case, you should treat the answers found on this board as informal tips and not regard them as golden legal advice.

Cheers

There's no category for independant consultant. There IS one for management consultant and its one of the most highly scrutinized Tn categories. As the OP said, bit of a stretch to try using this category when the actual work being done is cake decorating, and would risk exposing the fact that the person applying has already worked illegally.

Looking at the whole picture here, we have an individual who is in the US in a non-immigrant category, has been working illegally, and then will try to switch to a second non-immigrant category sponsored by the employer whom she was working for illegally. In the movies, this scenario would have a happy ending. In real life - not so much.

[CoffeeBeans 1]

There's no category for independant consultant. There IS one for management consultant and its one of the most highly scrutinized Tn categories. As the OP said, bit of a stretch to try using this category when the actual work being done is cake decorating, and would risk exposing the fact that the person applying has already worked illegally.

...

Let me explain the context of "independent consultant" in my previous post. Basically, TN and H1B are for specialty occupations. The difference between the two, TN is for temporary workers from NAFTA (Canada & Mexico) and H1B, non NAFTA. Additionally, TN visas are not subject to rigorous scrutiny by USCIS as long as the applicant meets the occupation specialty and other criteria under the TN visa program.

So, if the worker in question has specialty (on top of her cake decoration expertise) that is vital to the survival/growth of the business the OP is buying into, she can be a consultant working for the OP, providing specialty advice, and cake decoration is just part of her job there. The key is meeting the specialty occupation and other criteria under the TN visa program. If she can meet that criteria, it is easier/less costly to go for a TN than H1B due to her nationality.

The OP needs to do his own research to understand what are the criteria for applying a TN visa and evaluate if their specific circumstances qualify for a TN. I provided a link for information about TN visa, he can find many more similar links on Google. For a price, he can also pay a qualified attorney specializing in employment visas and permits to advise him the odds of getting a TN (or whatever other visa the attorney sees fit), and do the leg work.

Bottom line, this is a public forum, posters are free to voice their opinions on the subject, those opinions (including mine) are not legal advice.

...

Looking at the whole picture here, we have an individual who is in the US in a non-immigrant category, has been working illegally, and then will try to switch to a second non-immigrant category sponsored by the employer whom she was working for illegally. In the movies, this scenario would have a happy ending. In real life - not so much.

Totally agree. There are good reasons for USCIS to have tough and rigorous criteria for vetting all categories of visa applications, so that unwanted/undesirable applicants are screened out. Such a process will inevitably create pains and inconveniences for all applicants regardless of the legitimacy of their cases. People needs to understand there is no free/fast path, and not a good idea to circumvent USCIS system to get the visa they want.

Cheers

[Darnell 8,478]

If she's been staying in the USA in limbo, her casefile will be considered 'abandoned' when she crosses back to Canada.

To the best of my knowledge, she has to cross the border from Canada to USA to be awarded a TN-1 visa - it's not one that's given whilst yer 'in country'.

I could, of course, be wrong.

For now, tis a 'catch-22' - to be awarded the TN-1, she has to cross from Canada into USA, but if she leaves the USA, she abandons her current casefile (whatever that is as a dependent or spouse) and she may or may not be flipped into some 'illegal presence' status.

Edited September 26, 2011 by Darnell

[Dakine10 5,452]

If she's been staying in the USA in limbo, her casefile will be considered 'abandoned' when she crosses back to Canada.

To the best of my knowledge, she has to cross the border from Canada to USA to be awarded a TN-1 visa - it's not one that's given whilst yer 'in country'.

I could, of course, be wrong.

For now, tis a 'catch-22' - to be awarded the TN-1, she has to cross from Canada into USA, but if she leaves the USA, she abandons her current casefile (whatever that is as a dependent or spouse) and she may or may not be flipped into some 'illegal presence' status.

You can file for a Tn from inside the US using form I-129. It's just not done very often, because most employers (and employees) don't want to wait 90 days (or however long it's taking nowadays) to start work when they can get it done the same day at the border.

[Mestis 1]

I do not think TN is an option.

http://en.wikipedia.org/wiki/TN_status

There is a list of profession that are allowable to TN. Most of them requires a Bachelor degree or a State/Province certification. Experience might be considered, but I do not think experience as an illegal worker will do. You have to bring your diploma, school transcript, resume...

TN is easy to get if you are clear cut, like a bachelor degree in Engineering for an Engineering job. In this case, I do not see how you could spin it off.

For an H1-B, you need the U.S. Department of Labor to give a certification of skill ( I don't remember the exact name), and you have to prove you have tried to fill the position before.

[Noah Lot 391]

I am looking at buying a cake decorating shop in Texas. I want to ensure that a particular employee stays at the shop. In order to do so, I was planning to form a partnership of some kind with her - probably an LLC. She is a Canadian citizen who is here as a dependent on her husbands TN visa. She is waiting for a green card, but evidently that has been going on for years. She has been working illegally for the shop for a year. My question is what kind of Visa would she need to get - TN or H1B in order to work for a business as a LLC partner. My other fear as that 'cake decorator' does not seem to qualify under the professions listed on the approved occupations lists. If there is an option, what is it likely to cost in lawyers fees and application fees and the duration of the process? Thanks for your help! All the information I have found online is pretty confusing so far!

I guess there are no American cake decorators in the entire country and that it will be more helpful to our economy to hire an illegal alien than a responsible American citizen....'patriotism'....hopefully that is not a foreign word....