The Administrative Appeals Office of US Immigration and Citizenship Service has rendered a decision that potentially opens up another avenue for US permanent residency. This article discusses the decision and explores its implication for similar cases.

In a non-precedent decision, the Administrative Office of Appeals (AAO) of the US Immigration and Citizenship Service (USCIS) has rendered a decision that potentially opens up another avenue for US permanent residency. In its decision, the AAO upheld the appeal of an H-1B beneficiary, who had set up a start-up company, and then sponsored himself for an H-1B visa.

As per its usual practice, the Vermont Service Center of USCIS denied the original petition on the grounds that as a start-up company without employees the petitioner did not establish that it had sufficient H-1B caliber work to keep the beneficiary employed on a full time basis for three years. The USCIS also asserted that as a one-person business, the beneficiary would be responsible for administrative and clerical duties, which are not H-1B qualifying duties. Finally, the USCIS stated that the beneficiary could not assume his role without having clientele established, work contracts in place, and expectations of the proffered position defined.

In its decision overturning the USCIS denial, the AAO found that the petitioner, an LLC established under the laws of New York, qualified as a U.S. employer under the relevant Federal regulations. Thus, as a separate legal entity from the beneficiary, the petitioner had the legal capacity to submit an offer of employment to the beneficiary, and the beneficiary would not be “self-employed”, despite the fact that he would be the company’s sole employee. Additionally, the AAO cited a prior decision (Matter of Aphrodite, 17 I&N Dec. 520, 1980) and agreed with its ruling that a petitioner’s sole owner could be the same person as the sole beneficiary.

In the words of the AAO, “[e]stablished tenets of corporate law, as well as cases such as Matter of Aphrodite, state that a corporation has a separate legal identity from its own. As such, a corporation, even if it is owned and operated by a single person, may hire that same individual and the parties will be in an employer-employee relationship, as is the case in the instant matter”.

In the opinion of the author, this decision opens the door to another potential avenue to permanent residency in the United States, in that a professional without a job offer could literally form a corporation or LLC in the United States, secure premises for his company, extend an offer of employment to himself, and then petition for an H-1B visa. Securing H-1B status, which can last up to 6 years, could be used as a stepping stone to permanent residency in either one of two ways:

1.) The H1 professional’s own company could apply for Labor Certification and then petition for permanent residency for the professional; or

2.) The H1 professional could shift his visa to another company using AC21 Portability, and then rely on the sponsorship of the new employer.

Of course, as in all H-1B visa cases, this strategy will be subject to the H-1B visa cap, and will depend on the occupational classification of the proffered position, the educational credentials of the professional, and the ability of the company to pay the prevailing wage for the position. All of these considerations must be carefully considered and, preferably, guided by an experienced business immigration lawyer to avoid any missteps.

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