H1B or EB2(b)

[fcacciola 0]

Hello,

I currently live in Argentina. For the past 10 years I have been "working" for a US-company (strictly, I run a local company providing services to said company, but for all practical purposes I am a remote worker to them). I plan to live in the USA and I'm contemplating serveral paths, some which are based on having said company sponsor me. But have a few questions I can't answer by reading on the internet.

1) Considering that I live in Argentina and my plan is to move to the USA as soon as possible, should I request the US company (let's call it my current employeer) to file an H1B or an EB2(b) ? [FWIW I do qualfy for an EB2(b) AFAICT]

2) Which has an overall shorter completion time?

3) If I go on an EB1(b) instead of an H1B, do I still have keep working for the US company in order to legally remain in the US, just as if I where under H1B?

4) Again, under EB1(b), can I open a busniess on my own, even if working for the sponsoring US company?

TIA

[aussie_jason 195]

For reference this is the OP's previous thread - http://www.visajourney.com/forums/topic/484253-question-about-taking-alternative-visa-pathways/

You need to be discussing this with your lawyer, none of the visa pathways you are trying to make yourself fit under are DIY and need professional advice.

Edited March 20, 2014 by aussie_jason

[fcacciola 0]

Hi aussie_jason,

I know none (except EB1(a)) are DIY, and I will discuss it with an immigration lawyer. I'm asking all these questions because I need to have a starting point for initiating the discussion because the very choice if lawer depends on that.

Specifically.

If I attempt an EB1(a), which is DYI. This very forum provided plenty of advice for not hiring a lawer for this case (and applying myself instead) given that the entirety of the burden is on me. But even if I did, it would be a lawer speficically experieced in EBs

If I attempt an L1a from my own LLC (in about 1 year for now), then I need to hire the lawer myself, for sure. My parter and I already started conversation with such a lawer, by she can only help regarding this L path.

If OTOH I go with my "employeer" sponsorship, it would be *their* lawers, not one I would hire and not the one we already consulted for the L path.

So, let me restate, I cannot just pick any lawer and start a consultation. For example, I could not discuss with the L lawyer about my sponsored choices becuase the US company have their own lawers. But then again, if I engage the US company I have to stick with employement, but as I explained here (and before), I managed to work WITH them, not for them, for 10 years and I'm really trying to keep that after I move to the USA.

So whether by answers in a forum or not, I need backround information before I can move forward and engage with one particular lawyer.

[aussie_jason 195]

A good lawyer will be able to help with any of the paths and aren't they both your companies? So they would be your lawyer regardless of what company you went through or even if you went it alone without your company.

Who told you that EB1(a) would be DIY? I would not recommend that at all as without something like a Nobel Prize or an olympic gold medal then you are going to have to really make your case and for that you would be best consulting a lawyer.

[fcacciola 0]

No no, there are not both my companies.

Let me explain.

There is US company "A". It's a very big company, in fact a company group. They have their own immigration lawyers.

10 years ago they contacted me and I started working with them, but instead of being an ordinary remote worker, I set up my own Argentinian company B for the sole purpose of having with them a B2B relationship. Over the years, B had several *other* clients, coming and going, as well as a different number of employees. But all this time, the major client for my Argantinian company B has always been US-company A.

In terms of everyday duties, I am for them a remote worker. So are the 2 current programmers employed by my local company B that complete the "service" given to "A". And for a year now, I drop all other clients and "B" now provides services exclusively to "A". Which for all practical purposes it is to say that I work full-time for "A".

With an Argentinian partner, totally unrelated to A or B, we registered company C, an LLC in Florida, with the intention to migrate to the USA but keeping the same B2B relationship with A,

So, as you can see, if I go "by myself", meaning that I keep working for A as I did all these years but independently, as a company and not an employee, I need to handle the Visa myself, meaning with my own lawers.

Or, alternatively, I can give up on the independence and just have them sponsor me. FWIW, they want to do that and are trying to convince me to go as their employee. If I accept this, it's all in their hand and I won't be asking around any more questions.

Problem is I don't know how to decide.

Perhaps the most important if question (4) above: If I go EB2(b), do I need to remain their employee in order to stay in the US?

As for EB1(a) by myself, OK, no one told me that, but I have read here and in many other forums countless bad experiences with lawers, so I considered that to be best avoided. But OK, maybe I'm letting myself influence too much by bad experiences put in forums,

[aussie_jason 195]

You would be going for EB2A through company A and for immigration purposes you would be required to remain employed by them through out the petitioning period until your I-485 was approved, however companies aren't stupid and in that scenario commonly require you to enter into a contract with them so you can't leave without penalty once you get your green card.

I don't think you have as many options as you think you have, realistically I'd say your best chances are with a H1B or EB2A through company A. The L route with such a small company would be tough and as good as you may be at IT I don't think you would have much of a chance at the EB options unless you have $5000,000 to invest and are willing to hire more employees to have a total of 10, they just aren't that easy to qualify for otherwise there wouldn't be so much demand for H1B as everyone would qualify under the EB categories.

[fcacciola 0]

You would be going for EB2A through company A and for immigration purposes you would be required to remain employed by them through out the petitioning period until your I-485 was approved, however companies aren't stupid and in that scenario commonly require you to enter into a contract with them so you can't leave without penalty once you get your green card.

I don't think you have as many options as you think you have, realistically I'd say your best chances are with a H1B or EB2A through company A. The L route with such a small company would be tough and as good as you may be at IT I don't think you would have much of a chance at the EB options unless you have $5000,000 to invest and are willing to hire more employees to have a total of 10, they just aren't that easy to qualify for otherwise there wouldn't be so much demand for H1B as everyone would qualify under the EB categories.

OK.

I actually don't have any plans of leaving company A at all. My concern is directed to the following. Company A allows its employees to havea side business as long as it doesn't interfere with work duties, this is how I manage to keep my small company B all this time. For A, this is a way to accomodate those like me with income ambitions above the resonable salary for any given position. So what I wanted to know is if I would be able to the same while living in the USA and working for A. Or, alternatively, if *they* could play me down on any negotiation on the basis that I have to fly back to Argentina shall I refuse any work condition such as a normal salary but less than what I would otherwise be able to negotiate being independent.

As for my chances, OK, this is precisely the sort of response I was hoping to get. Now I know that better just talk to company A and tell them to get the ball rolling for EB2

Just let me confirm this: ONCE I get the green card (suppose I go under EB2), I will be legally allowed to have a side bussiness even if I remain employeed by A, right?

[aussie_jason 195]

For EB2 there is a lengthy process your employer needs to go through for PERM where they need to advertise the position for a set period and wait for applications etc in order to gain labor certification, once that is done then they can petition for you with an I140, which they have the option of paying for premium processing, once the petition is granted you can then file your I485 along with an I765, the I485 is what will eventually give you your green card where the I765 will grant you authorization to work in the interim, I think the same 60-90 day term applies for the employment authorization as it does for other categories. Once you have your employment authorization card you are free to work for any company in the US as long as your primary employer is ok with that, the same goes for when you get your green card.

The H1B process would potentially be quicker and easier but they would need to get on that ASAP to get it prepared ahead of the April filing window for this October but with a H1B you are locked to the one sponsoring employer as for that you just receive a visa stamp (it is more of a print out that covers an entire page but they still call it a stamp) in your passport that is tied to your current employer and you can't legally work for anyone else.

In case you're wondering I have about 20 years of experience in IT myself, completed a full term on a L1-B, then switched to an E3 with another employer and currently have an employment authorization card while I wait for my AOS via marriage to a USC to be processed, which I have the interview for on April 7th so I can relate to your situation to an extent.

[fcacciola 0]

Oh OK, thank you again for the response.

So, in terms of getting there as fast as possible, my best chance is to ask them to sponsor an H1B, then once there, an EB2. Would they deny the EB2 for whatever reason, as such the fact that I cannot leave them while on H1B?

I just want to make sure that, if I ask for the H1B I don't end up trapped.

[aussie_jason 195]

You are at the mercy of your employer at that stage unless you find another employer that is willing to sponsor you and do a transfer of the H1B.

[fcacciola 0]

OK. That's what I needed to know. Thank you again.

[fcacciola 0]

Transfering the H1B to another company takes the same as getting it for the first time? I suppose.

Also, what about my wife and minor kids if under H1B? Can they just live there in the US with me? I know my wife won't be able to work unless she has her own Visa, but that's not a problem, she doesn't work here anyway, she is a stay-at-home mom.