Portland, OR asked in Immigration Law for Oregon

Q: H1B from Employer A to EB1-A Petition based on Extraordinary Abilities

I'm on H1B with Employer A. I have Founded a new company, Invested in my Ideas to make smartphone Apps. I hired someone in my company to oversee the progress. I paid to a software company in India to make these Apps and launched in Appstore and Google Play. Now the Apps became very successful and came in Top Medias, gained global recognition. Here is my question: 1. I have strong 4+ credentials to qualify for EB1-A 2. If I file EB1-A I-140 petition, do I need to show any evidence that I didn't work for this being in H1B? It's super confusing, technically I didn't earn a penny from these Apps yet, they are just like any other investment. Please suggest. Thanks

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1 Lawyer Answer
Carl Shusterman
Carl Shusterman
  • Immigration Law Lawyer
  • Los Angeles, CA

A: Nothing for you to worry about. Although few attorneys are aware of this, when I was Trial Attorney for the INS in the early 1980s, the 9th Circuit Court of Appeals ruled in Bhakta v. INS that even a person with a non-working immigration status could run a business as long as he did not take a salary from the business.

Here's a quote from the decision:

"With the business investor provision, the INS recognizes that certain types of activity for profit do not adversely affect employment opportunities for legitimate aspirants in the labor pool. We need not determine whether Bhakta is a business investor under the applicable regulations-that issue is not before us. We merely analogize to that status in noting that Bhakta's operation of his enterprise does not reduce the number of jobs for citizen or authorized alien workers. It would not serve the purposes of the statute to hold that Bhakta's management of his investment is unauthorized employment."

Good luck!

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