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
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!
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
