WHAT NOT TO DO AND WHAT YOU MUST KNOW ABOUT HIRING EMPLOYEES
You have come up with a million dollar idea and know exactly how to get the ball rolling. Not so fast. You can jeopardize your current immigration status by launching a new business venture. In Part 1, we explored investment and trade options for launching a U.S. business. In this segment, we discuss what not to do. We also provide basic information about hiring employees.
Launching a Company While in the U.S. in L-1 or H1B Status
In order to qualify for an H1B or an L-1 visa, the beneficiary must possess a high level of education, experience, training, skills and knowledge — exactly the type of person who might launch a successful business. However, launching a business is tantamount to working for another company without authorization.
An employer must sponsor an H1B or L-1 beneficiary. During that process, the employer must demonstrate various criteria in regards to the company and the beneficiary’s job duties, qualifications and remuneration. The visa is approved for that particular job under those particular criteria. If a job change is necessary, the beneficiary must update his or her application before transferring to another company since the job location, company information and position details are different than that presented under the original application.
You might, however, seek to change your nonimmigrant status or port to the new job at the business you plan to launch. To do so, a U.S. partner would need to sponsor your employment-based nonimmigrant visa and you would need to undergo immigration processing as you do with your current employer. Note, that available H1Bs might have already reached the cap for the year. By law, no more than 65,000 foreign nationals may be issued a visa or otherwise provided H-1B status each fiscal year.
Whether your U.S.-based startup hires foreign national or U.S. employees depends upon your needs and the status upon which you launched your company. For example, if you entered the United States under an investment visa, producing jobs for U.S. workers is a criterion for remaining in compliance. This is not to say you cannot hire foreign nationals, just that your company should analyze new hires in terms of how they affect your obligations and the renewal of your visa.
The foreign nationals you choose to hire must go through the appropriate immigration processing. The employee of an E-1 treaty trader or E-2 treaty investor company, for instance, must be the same nationality as the principal trader or investor and must be an executive, supervisor or otherwise uniquely qualified. For an H1B hire, you must show that the foreign national is not displacing qualified American workers.
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