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같은 문제로 고민을 좀 많이 해봤던 사람인데요.
제가 여러 이민변호사의 상담과 인터넷 게시판을 살핀 뒤 내린 결론은
1) 회계사가 말한데로 회사설립 (c-corporation) 해서, President로 있으면 체류신분에 문제가 없습니다.
2) 위의 “president”님이 말씀하신데로 절대 월급의 형태로 수입을 가지셔서는 안되고, 반드시 dividend 또는 share의 형태로만 가지셔야됩니다.
3) 어떤 사업을 하실지는 모르지만, 고용인을 두셔야 한다고 생각합니다. 말씀하신데로 매출이 생기고 sales tax를 내는데. 직원이 없다면 이민국이나 IRS에서 당연히 이상하게 생각하겠지요.
4) 아래의 예가 도움이 되시기를..
Q: I am an H-1B/H-4/F-1/etc., and I am interested in forming my own company. Can I do this legally or will I be jeopardizing my current status?A: This is indeed a “frequently asked question,” particularly in light of the fact that many immigrants to the U.S. have high ambitions and entrepreneurial aspirations. As always, I will preface the response by telling you that there are a myriad of details and issues which prohibit us from giving you a specific response which will apply in all cases. However, here are some general guidelines.
Unlike most nations in the world which have a single system of incorporation, the United States is different: each state, district, or territory has its own rules governing the formation and maintenance of corporations, partnerships, limited liability companies, etc. In Florida, and in most states, a corporation can be formed by any individual, even individuals who are not physically residing in the United States. To form a corporation, there are a number of parties involved:
The incorporator: Most frequently, this is the attorney or certified public accountant who acts to establish the corporation.
The directors: At the formation of the company, the directors responsible for undertaking the company’s business must be identified. These initial directors identified in the articles of incorporation can subsequently be amended as needed.
Officers of the corporation: Officers are elected in the by-laws of the company, which take place at the initial organizational meeting after the company has been established and is registered with the state. At such time, the President, Vice-president, Treasurer, and Secretary are elected by the directors.
Most individuals in most visa categories – immigrant and nonimmigrant – are not violating any laws by appearing as an incorporator, director, or officer of a company, provided that they are not being compensated for “working” for the company. I’ll give you a tried and true example I have been using for about 8 years:
Kareem and Ben are both in H-1B status. Each dreams of starting his own software consulting company. Both are experienced programmers, and are interested in launching their own side business. Both form corporations through an attorney, obtain a business license, lease office space, and hire several American workers to undertake daily business. So far so good. Both are complying fully.
Kareem keeps his day job and keeps working, and hires a U.S. manager to administer the daily operations of his new company. Except for counting the money and touching base with the administration, Kareem is out of the loop with the daily operations of his company. Ben, however, is more of a micromanager. He is concerned about the growth of the company, so he begins “moonlighting,” doing a little programming on the side, and generally assisting in the operation of his new company.
In this scenario, Kareem’s actions are perfectly legal, while Ben is violating his H-1B status.
Why is Ben violating his status? There are no prohibitions under U.S. immigration law that would prevent an individual who is foreign – indeed, someone who has never set foot in the U.S., from serving as an incorporator, director, or officer of a U.S. enterprise. Similarly, it is possible for partnerships, limited liability, and other forms of organizations to include members who are not U.S. citizens, residents, or in non-immigrant status. It’s the “working” the business that is prohibited. Let’s go back to the example above:
In Kareem’s case, as much as he would like to jump in and help his company get a quicker start, he has spoken carefully to his immigration attorney and understands how limited his role must be. At the end of the first year, Kareem’s company shows a profit of $10,000. Because he is fully complying with the law, that income is reported as corporate profits, and he pays the necessary taxes. (It is our understanding that foreign nationals cannot be shareholders in subchapter S corporations, but this isn’t really our area of expertise…make sure you ask your C.P.A. about this.) The restless Ben, however, doesn’t want to pay corporate taxes, and takes a direct payment from the company. Once again, Ben is violating his immigration status by receiving compensation for “work.” In the case of Kareem, the profit that he derives from the activities of his corporation – activities wholly undertaken by other individuals – it is “passive” income. Even though Kareem is a shareholder and perhaps even an officer in the company, the money he is making comes as the result of profits declared by a company, much like profits earned on a certificate of deposit, performance royalties paid to a songwriter, etc. It is passive income, it is taxable, but it is not income stemming from his “work.” By having his hand in day-to-day activities, conversely, Ben is engaged in unauthorized employment, even though he is only working for his own company.
The next question raised is: Can I get a concurrent H-1B for my own company while still keeping my “real” job?
I have addressed this issue before in an FAQ, and will not explore this very deeply, but I will tell you that it is, indeed, possible to do so, but only in cases where your corporation is firmly established and can meet INS thresholds – subjectively defined – as an employer.
What does this mean? Well, we are constantly asked how large a company must be, how many employees, and what its revenues must look like before we are comfortable filing an H. While it is technically possible to file an H on behalf of an individual who is a shareholder of a company, this happens less and less frequently these days, mostly due to more strict adjudications by INS. Bear in mind that there are no minimum thresholds for an H-1B employer defined in the regulations or statutes; however, the whole deal has to make sense to the INS…it must be justifiable, the need must be provable, and the income must sustain the petition. For example, if your company is six months old, you have one programmer, and revenues of $40,000, I would be extremely uncomfortable filing a concurrent H allowing you to program on the side. However, if you are someone who is still holding down their day job as a programmer for a major corporation, and the little company you started last year now has 5 employees and is grossing $250,000 a year, getting a concurrent H approved for you in your company’s name would probably not be too difficult.
Another question…if I decide to do this, is it better for me to have U.S. partners as shareholders, since the INS does not like foreign owned companies?
While I am somewhat uncomfortable with the fact that INS tends to view cases filed by certain nationalities more stringently than those filed by other nationalities, I do not believe that it is necessary to do this. If the company is viable and can stand on its own two feet and prove its need for an H-1B employee, the petition can be approved. I can tell you that in over 4,000 filings since 1990, there has only been one situation where the INS denied a small-company H petition for our firm…we appealed it, we lost, and they were dead wrong in the decision. The rest that we have filed have been successfully approved, but principally because we are very cautious in advising our clients on what can and cannot be filed.
Final thought to our entrepreneurial friends: If you have a real dream of starting your own business and dabbling on the side, by all means do so passively, without “working”…you are in a nation which enshrines entrepreneurial activity! However, don’t think of your new company as a “way out” from an immigration standpoint. Even when the company is large enough to possibly support you as an H-1B, bear in mind that no labor certification can ever be filed when you or anyone you are related to is a shareholder in the company filing the petition. At best, it can serve as an H vehicle for you. Consistently, over the years, we have seen that those who initiate entrepreneurial activity and follow the letter of the law, as my hypothetical Kareem did, are the ones who find themselves in not only the most profitable situation, but one that brings with it the peace of mind of knowing that no immigration laws have been violated.
Go forth and conquer!