gilbert7

Hello,

Firstly, I'd like to wish one & all a Merry Christmas & a Happy New Year!

I am 50+, an Indian National, graduate of a US University, visiting US 4-5 times a year on Business (B1/B2 Visa) for the past 20+ Years.

I have recently invested in an EB5 project and I believe waiting time is 16-24 months. In the meantime, I plan starting a business in US and would like to know if I can own and operate a business myself.

Based on my own research, it appears that until my I-526 comes through(And I am at least granted a temporary green card) , I have to operate through an qualified attorney or a secretary in USA. Is this legal & safe to do without jeopardizing my investment in existing EB5 project?

Any guidance will be greatly appreciated.

Thanks
Gilbert

ian-mstm

Yes, you can own and operate a business in the US... as long as you don't work directly for the business while you're inside the US - at least, not without a visa that allows you to work. With a B-1, you can engage in business dealings... but perhaps that's sufficient at this stage of things. When you enter the US, I suggest you use the word "business" instead of "work" when asked what you'll be doing.


I believe it is, yes.

Ian

crg

There is a big difference between the business dealings allowed for a foreign entity and a US entity.

Anything more than passive investment in a US entity could be a violation of B1 because the principal place of business and the accrual of profits is within the US. There normally must be a foreign component to the commerce in order to allow foreign personnel to use a B1 to conduct the business activity.

The B1 may be appropriate to do the initial startup like arrange for office space but the B1 is no longer the correct category once the business is operational.

jandrews

Ian and "crg", thanks for your replies. I appreciate it.

Does anyone else have any further thoughts/opinions?

Steve_

Well one thing I would point out is that entry as B-1 leading to E-2 is permitted:

I would have thought the same principal applies to EB-5. You've got to see what you're investing in.

The relevant bit of caselaw is Matter of Neill which basically said B-1 was for the purpose of facilitating international trade, not merely travelling internationally and then conducting trade in the US that was US-based. http://www.justice.gov/eoir/vll/intdec/vol15/2392.pdf

I remember some other caselaw, can't remember the name of it, but some Canadians (as is usually the case as they're the only ones who can get to an immigration court) owned a condo development in Florida and they were the landlords and they ended up being denied entry because although they claimed to be visitors they lived in the development while in the US and it wasn't a "passive" investment, they were actively involved in running it.

crg

How is it that Canadians are the only ones who can get to an immigration court? A Canadian who is thought to be working in the US and denied entry at the border has the same right to see a judge as someone with a visa (very little). A criminal Canadian could get easier access to see a judge since they are visa exempt. I'd say the percentage of Canadians in proceedings at any given moment is a tiny fraction of the total considering it's a country of 30 million or so and very fee Canadians claim asylum.

Steve_

Well I was generalizing, there's a provision that they can be returned to "adjacent foreign territory" while waiting for their hearing, which makes it easier for Canadians to appeal, plus Canadians have the money and the means to a greater degree than Mexicans I guess.

The grounds for appeal as I recall became more limited by the 1996 Act but before that a lot of Canadians entering as visitors got turned away, waited for their date in court and then made their case.

Plus of course Canadians are more likely to want to enter the US than other nationalities generally speaking. Not being allowed in is a big deal for a Canadian.

So there seems to be a bias towards Canadians in the case law dealing with visitors.

crg

People, like the OP, who may be operating a business without work authorization would not qualify for a hearing, or an appeal, or to return to Canada pending either.

If by "more limited" you meant the hearing and appeals were eliminated for most cases that didn't involve overstays, criminals, LPRs then I would agree.

I agree. Canada can get quite cold and the vast majority live within 100 miles of the US border.

Actually, someone seeking entry as a visitor who is suspected of coming to do business that is outside the scope of what a visitor is allowed to do does not go to immigration court even if Canadian. They either get to go back out of the US (if refused/granted the benefit or withdrawal of application) or they get an expedited removal order. There is no process to appeal of that decision per se other than on the basis of asylum or unverified claims to US citizenship, LPR status, Asylee status or Refugee status. That applies to Canadians too. Even if the person goes to the IJ because of one of those issues, the IJ does not review whether the person is removable or not. This only applies to charges of 212(a)(7)(A)(i)(I), (7)(B)(i)(I) & (II) or (6)(C)(i) & (ii).

Canadians who are inadmissible for criminal grounds under 212(a)(2) or prior overstays under 9(B) before they were Canadian may be able to see the IJ though and they may be allowed to wait in Canada or they may be detained (that's up to the authorities). The person isn't entitled to wait in Canada. There used to be something called "port court" in Blaine, WA where the IJ would come to the border and hold court.

As for appeal for such an action, attempting to come back into the US following such an expedited removal would be a felony so that's generally not recommended to seek entry to pursue an appeal. A Form I-212 and/or a Form I-192 could be submitted.

Found a link to an article about port courts:

http://seattletimes.com/html/localne...tcourt03m.html

Some of the information is flawed, but that's typical for media reports.

Steve_

Yeah now, but I was talking about the case law. The case law is prior to 1996 because the law changed then.

I'm just saying the caselaw on visitors usually seems to involve Canadians, the main major exception being Matter of Hira.

As for I-192, what about Matter of Hranka? Also Canadian.

crg

Since IIRIRA has been law for well over a decade, it doesn't appear appropriate to point out the appeals that don't exist anymore or describe them as more limited when they are gone altogether. Unless the OP has a time machine of course.

Being allowed to seek entry without a visa, pre IIRIRA, was a benefit to Canadians who wanted to go before an immigration judge, but most of those people were not rolling up to ask to see the judge. They likely kept trying to enter before being ordered to appear.

I do not dispute that there are decisions related to Canadians and work, but the law has changed and Canadians seeking entry to do unauthorized work have no more access to the courts and appeals than someone from Mozambique. Canadians can seek entry as a visitor without a visa or VWP eligibility, but so can some visitors from Mexico, Bermuda, Bahamas, Turks & Cacos, Aruba and a few more. It makes sense that since there are more visa exempt Canadians and a ton of crossings that a decent number would end up in immigration court.