I am a Indian national and am starting a USA company. My plans are to start a small business in USA and then apply via L1 visa. I already have a established business back in India and I am the majority shareholder.
I am planning to start the business in Texas. The business is going to be Wholesale Gift Products with physical and online/virtual selling both.
Because I am foreign national from india and my intend is apply for L1 visa, what is the best type of setup? Sole Proprietership, Partnership, C Corp , S Corp or LLC. . Do note, I do not have a GC nor SSN nor Tax ID.
What would be your suggestions
No offense, but you are asking all the wrong questions.
The business type isn't as important as how the 5 year business plan is structured.
Normally, at best, you will get a 1 year start-up visa.
But, if you are the majority owner of the Indian company and if the companty in India doesn't have a substantial number of employees, nor a substantial amout of sales ... immigration will suspect that you are trying to establish a 'shell' for getting a US visa.
Meet with an attorney, many of us use Skype.
PROFESSOR OF IMMIGRATION LAW for over 10 years -- This blog posting is offered for informational purposes only. It does not constitute an attorney-client relationship. Also, keep in mind that this is an INTERNET BLOG. You should not rely on anything you read here to make decisions which impact on your life. Meet with an attorney, via Skype, or in person, to obtain competent personal and professional guidance.
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The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. This classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one. The employer must file a Form I-129, Petition for a Nonimmigrant Worker, with fee, on behalf of the employee.
The following information describes some of the features and requirements of the L-1 nonimmigrant visa program.
General Qualifications of the Employer and Employee
To qualify for L-1 classification in this category, the employer must:
•Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and
•Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1. While the business must be viable, there is no requirement that it be engaged in international trade.
Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.
To qualify, the named employee must also:
•Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and
•Be seeking to enter the United States to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations.
Executive capacity generally refers to the employee’s ability to make decisions of wide latitude without much oversight.
Managerial capacity generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization. It may also refer to the employee’s ability to manage an essential function of the organization at a high level, without direct supervision of others. See section 101(a)(44) of the Immigration and Nationality Act, as amended, and 8 CFR 214.2(l)(1)(ii) for complete definitions.
For foreign employers seeking to send an employee to the United States as an executive or manager to establish a new office, the employer must also show that:
•The employer has secured sufficient physical premises to house the new office;
•The employee has been employed as an executive or manager for one continuous year in the three years preceding the filing of the petition; and
•The intended U.S. office will support an executive or managerial position within one year of the approval of the petition.
Mr. Shusterman's (former INS Trial Attorney, 1976-82) response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.
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When establishing a new U.S. Subsidiary or Affiliate company for an L-1 Visa, you will want to keep the following in mind:
The foreign firm and the US firm must have a “qualifying relationship.”
The US and the foreign firm must have common majority ownership, or, where there is less than majority ownership, common control by the same person or entity.
Ownership by a common group of owners where no owner has control or a majority interest can cause a problem if each individual owner does not own approximately the same amount of both the US and the foreign company.
This problem can sometimes be worked around if the owners have set up a voting agreement to ensure that there are not different groups controlling the foreign firm and the US firm.
As a general rule, the Owner of the Foreign Company should own at least 50% of the U.S. Company. A suitable entity form for the L1A is the C Corp in most cases. Hope this Helps.
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