I am planning to apply for the EB-5 investment by using my own company. I have meet all the EB-5 requirements with a detailed expansion plan and will be able to create 10 jobs. I am currently working under OPT but it will soon expire. How can I apply for an H1-B visa in order to keep running the business while my EB-5 case is waiting for approval?
When I apply for EB-5, my title is CEO of the company on all the paper work and contracts, but when I apply for the H1-B I need to put my position as an engineer. How will this impact my case?
Sponsoring yourself for an H-1B can be difficult. You may want to consider an E-2 visa, which allows you to be admitted to the U.S. when investing in a U.S. business. You will need to check if your country of nationality is included as an E-2 country.
Unless you have an independent board that can hire or fire you, it is hard to get a CEO H-1B. Best to have minority share holding.
Self-sponsored H-1B is a difficult case. Please hire an experienced immigration attorney to ensure your positions and the company are structured properly both for H-1B and EB-5 purposes. If H-1B is not chosen in the lottery or denied, you may not run a business lawfully, even if it is your own company. E-2 visa may be a better option for you if you are E-2 treaty country eligible. It also has to be properly structured to continue to qualify for EB-5 filing.
You need an immigration attorney handling this H-1B petition. The immigration attorney will address these issues. This will be a difficult H-1B case.
Applying for an H-1B visa is not inconsistent with also applying for an EB-5 immigrant visa. However, to apply for your H-1B visa you would have to file on or about April 1st and there is little time to do so with perhaps only a 25% chance of success given the 65,000 visa annual cap. One could be an engineer and also CEO of the company, although it is possible that that inconsistency might have to be explained. However, remember any position with the EB-5 company is sufficient; you do not have to be CEO. So to the extent possible as a matter of precaution, I would keep your job titles comparable.
For H-1B purposes, generally there must exist an employer-employee relationship. If USCIS determines there is no employer-employee relationship (as it may be construed as self-petition since you are the owner of the company), might place the H-1B at risk. [You may want to explore E-2 investor visa instead of H-1B, if your country qualifies.]
Under the H-1B visa, you cannot create your own company and employee yourself. Also, an H-1B beneficiary has to be petitioned for by an employer. However, under the direct investment program of EB-5 you can certainly create a company and own the business entity. As a matter of fact, you are required to run and manage the business. These basic facts are in line with your interpretation of both visas and they should not negatively impact either your H-1B or EB-5 case.
For EB-5 purposes, if you meet the requisite requirements of capital investment, job creation, source of funds, viability of the job-creating entity, etc., you should be fine; however, as long as there is no fraudulent information provided (ie., when applying for H-1B, company ownership, structure, etc., were accurately provided) you should not have any problems.
Sponsoring yourself as H1B may be difficult, particularly under this administration. Please consult an experienced immigration lawyer to help. With the comprehensive business plan that is EB-5 compliant, EB-5 petition, on the other hand, may be easier if the SOF could be proved and tracked with your earning under OPT or otherwise authorized employment or gifted from a source that could be tracked. But, just filing the EB-5 petition will not keep you in U.S. and in status if your H1B is not picked for lottery or denied. Also, please note that earning money while under F-1 is considered unauthorized employment, even if it is your own business, and may cause problems at the adjustment of status step.
These are all great questions that should be answered under the professional direction of a qualified EB-5 Investment Immigration Attorney with the assistance of an experienced EB-5 Business Plan professional. You should not take business actions on your business if EB-5 is an important component of your planning without adequate professional guidance.
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