Q: Is it ok to have a sole director (my brother) for the LLC I am incorporating under F1 STEM OPT?
An immigration lawyer recommended that I have my brother, myself, and someone else on the board so it shows majority vote against me to prove employee-employer relationship. However, I do not have another person to get involved into this.
I am fine with my brother having sole directorship in this company (he has no equity/monetary gain from the company), and I fully entrust him, no doubts whatsoever, having him as sole director, with any decisions in the company.
Is it necessary to have a 3rd person if this is the case, and still show employee-employer relationship, or would I absolutely need a 3rd person?
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A:
Under U.S. immigration law, particularly for those on F1 STEM OPT, establishing a valid employee-employer relationship is crucial. The recommendation to have a board with a majority vote against you is aimed at demonstrating this relationship, which is a key requirement for maintaining F1 status while engaging in business activities.
Having your brother as the sole director of your LLC can be a viable option, but it might not be as strong in proving an employee-employer relationship compared to having a board with more members. The idea behind having additional board members is to show that there is an external control mechanism in place, which can make decisions independent of your influence, thus solidifying the notion of an employer-employee dynamic.
It's not absolutely necessary to have a third person, but having only two members, especially when one is a family member, might not strongly convey the desired employer-employee relationship to immigration authorities. It’s a balance between what is practically feasible for you and what is ideal for immigration compliance.
You may consider consulting with another immigration attorney for a second opinion or to explore alternative structures that comply with immigration requirements while fitting your situation. Remember, each case is unique, and it's important to ensure that your business structure aligns with immigration regulations to maintain your F1 status.
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