6 ms·

The analysis from patio11 is essentially correct. It is NOT legal to be living in the United States unless one has a citizenship or visa status that allows doin

The analysis from patio11 is essentially correct. It is NOT legal to be living in the United States unless one has a citizenship or visa status that allows doing so. What forming an LLC does is avoid many of the enforcement mechanisms that reveal persons who are in the United States illegally. But if you are found anyway, nothing about forming the LLC will protect you from being deported. You don't gain an immigration status by forming the LLC--what you gain is a way of making a living. If you are making a living in the United States without work permission, you are still an illegal immigrant. Simply put, the newspaper headline is WRONG--there is nothing legal about working in those circumstances. (Obligatory disclaimer: I am simply describing the immigration law of the United States as it is, not as I might desire it to be.)

dalke 13y ago
"Simply put, the newspaper headline is WRONG" I think there's a fuzzy line, but that fuzziness could be in my own head. In my LLC I had no employees. My company made money, and I did an owner's draw when I wanted money from the company. I worked, but I didn't work as an employee. The work laws target employees, not owners, and I think that's the distinction the article is trying to make.
- tokenadult 13y ago
  Every country that limits immigration (most) makes limits on working in the country without proper status. The United States immigration statutes and regulations most certainly do NOT say that a foreign person without proper visa status may form an LLC and then work here. That may not be the easiest part of immigration law to enforce, but the newspaper headline says "legally," and that is just flat wrong.
  - dalke 13y ago
    Yes, I understand and agree with the first sentence. The fuzziness is in what those limits are. The first person mentioned, Carla Chavarria, is not a legal resident of the US, but she "obtained a two-year reprieve from deportation under the Obama administration's deferred action program." She does not have proper visa status. We are agreed on that. Foreigners can own a US LLC, independent of their visa status. Therefore, she is allowed to own a US LLC. Owners of an LLC can draw money from the LLC. Therefore she can draw money from her LLC. Are we agreed upon that? What then is the illegal part about the way that she makes money from the work that she does? "most certainly do NOT say that a foreign person without proper visa status may form an LLC and then work here" Since a foreign person without proper visa status may form an LLC, the key part is the "and then work here." I agree with you that her LLC is not a reason to let her stay in the country. She gets to stay in the country because she has a two-year reprieve. In that case, starting an LLC is a way to make it possible for her to get money, based on her work as owner of the company. So if "work" is broadly defined to include work done by non-employees (eg, owners), then she's legally making money from her work, no? If not, then what law is being violated?
    - einhverfr 13y ago
      Indeed. I actually suspect that if she was deported, she could probably move just to the other side of the border, and use NAFTA Professional Services visas to come to client's sites in the US, and continue making money, this time without paying income taxes.
      - evadne 13y ago
        The L visa for multinational managers or intracompany transferees is possibly more suitable assuming that she has already hired a few people and would have some revenue to show. She can also possibly file for an O visa on grounds of extraordinary ability in arts or business given her circumstances, with a waiver that essentially asks the US government to overlook her immigration law violations… I’m not a lawyer.
    - mahyarm 13y ago
      While located in the USA, you cannot do any sort of work unless authorized by your visa to do so unless it's like the B-1 telecommuter (getting paid by a non-us source into a non-us bank account). That includes unpaid and/or volunteer work. That theoretically means it's illegal for a guy on a H1B to contribute to open source projects independently of his employer, fix his car, etc. Nobody gives a shit about that stuff in practice although.
      - einhverfr 13y ago
        But if you are a principle or officer of a US-based company, surely you aren't required to stop your work just because you are in the country. The duties haven't changed. It's slightly different if you have a contractor who must do billable work only when out of the country. Otherwise you couldn't do sales on a business visa, nor could you discuss a possible joint venture when visiting a friend on a tourist visa. So I don't think the courts would hold the rules to be that inflexible.
        nknighthb 13y ago
        > surely you aren't required to stop your work just because you are in the country Of course you are. Look up the B-1 visa. It covers exactly what you're talking about. http://travel.state.gov/visa/temp/types/types_1262.html http://travel.state.gov/visa/temp/types/types_1262.html
einhverfr 13y ago
Ummmm I think it is two questions.... 1. Is it legal to be living in the US? No, in that case (you are correct) 2. Does it break additional laws to be working in the US in this situation? I doubt it. Traditionally there is a distinction between "employees" and "corporate officers."
- nknighthb 13y ago
  The immigration laws do not distinguish based on the label you attach to your employment status. A non-citizen cannot legally perform work in the United States without an immigration status that explicitly allows it (e.g. permanent residency or some form of work visa). Neither ICE nor the courts will be impressed with the argument that you don't call yourself an employee. They don't care. You're performing work in the United States. Nothing else is relevant.
  - einhverfr 13y ago
    My points are: 1. They can deport you anyway. 2. It isn't clear that the LLC is violating any laws for having corporate officers who run afoul with immigration laws. 3. It isn't clear that the corporate officer is subjected to any additional penalties for such work. If you aren't going to spend an additional day in jail or have additional legal sanctions for certain behavior, then the argument is entirely academic. In short, yes they can throw them out of the country. My question is.... What other penalties come up for doing the work? If there are none, then it doesn't matter, the only real crime is overstaying the visa, entering illegally, or the like. And yes immigration can make their lives worse if they want to return. But immigration can do this even if no laws have been broken. So my question: What, if any, additional penalties attach to an illegal immigrant for the actions of serving as a corporate officer?
    - nknighthb 13y ago
      > 2. It isn't clear that the LLC is violating any laws for having corporate officers who run afoul with immigration laws. Corporate officers are just as much employees as anyone else. Where is this idea that they're something else coming from? By the way, 8 USC 1325(d): "Any individual who knowingly establishes a commercial enterprise for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, fined in accordance with title 18, or both."
jonemo 13y ago
Minor nitpick: Visa status != Immigration status For example: As a student you can have an expired F1 visa in your passport, but as long as your I-20 document is kept valid and you are attending school you are fine. The visa is only of concern when crossing the border.
- raverbashing 13y ago
  Correct This also applied for regular B visas, if it expires on day X you have until day X to cross the border, but the maximum duration of your stay is determined by the officer, regardless of the remaining visa duration.
- hpagey 13y ago
  Exactly you do not need a Visa to be in status. Another example of valid status without the need of visa is I-485 pending status. Lots of people who have applied for i-145 ( adjustment of status from non immigrant to immigrant) are legally allowed to be in the US and enter the US without Visa.

dalke 13y ago

"Simply put, the newspaper headline is WRONG" I think there's a fuzzy line, but that fuzziness could be in my own head. In my LLC I had no employees. My company made money, and I did an owner's draw when I wanted money from the company. I worked, but I didn't work as an employee. The work laws target employees, not owners, and I think that's the distinction the article is trying to make.

tokenadult 13y ago
Every country that limits immigration (most) makes limits on working in the country without proper status. The United States immigration statutes and regulations most certainly do NOT say that a foreign person without proper visa status may form an LLC and then work here. That may not be the easiest part of immigration law to enforce, but the newspaper headline says "legally," and that is just flat wrong.
- dalke 13y ago
  Yes, I understand and agree with the first sentence. The fuzziness is in what those limits are. The first person mentioned, Carla Chavarria, is not a legal resident of the US, but she "obtained a two-year reprieve from deportation under the Obama administration's deferred action program." She does not have proper visa status. We are agreed on that. Foreigners can own a US LLC, independent of their visa status. Therefore, she is allowed to own a US LLC. Owners of an LLC can draw money from the LLC. Therefore she can draw money from her LLC. Are we agreed upon that? What then is the illegal part about the way that she makes money from the work that she does? "most certainly do NOT say that a foreign person without proper visa status may form an LLC and then work here" Since a foreign person without proper visa status may form an LLC, the key part is the "and then work here." I agree with you that her LLC is not a reason to let her stay in the country. She gets to stay in the country because she has a two-year reprieve. In that case, starting an LLC is a way to make it possible for her to get money, based on her work as owner of the company. So if "work" is broadly defined to include work done by non-employees (eg, owners), then she's legally making money from her work, no? If not, then what law is being violated?
  - einhverfr 13y ago
    Indeed. I actually suspect that if she was deported, she could probably move just to the other side of the border, and use NAFTA Professional Services visas to come to client's sites in the US, and continue making money, this time without paying income taxes.
    - evadne 13y ago
      The L visa for multinational managers or intracompany transferees is possibly more suitable assuming that she has already hired a few people and would have some revenue to show. She can also possibly file for an O visa on grounds of extraordinary ability in arts or business given her circumstances, with a waiver that essentially asks the US government to overlook her immigration law violations… I’m not a lawyer.
  - mahyarm 13y ago
    While located in the USA, you cannot do any sort of work unless authorized by your visa to do so unless it's like the B-1 telecommuter (getting paid by a non-us source into a non-us bank account). That includes unpaid and/or volunteer work. That theoretically means it's illegal for a guy on a H1B to contribute to open source projects independently of his employer, fix his car, etc. Nobody gives a shit about that stuff in practice although.
    - einhverfr 13y ago
      But if you are a principle or officer of a US-based company, surely you aren't required to stop your work just because you are in the country. The duties haven't changed. It's slightly different if you have a contractor who must do billable work only when out of the country. Otherwise you couldn't do sales on a business visa, nor could you discuss a possible joint venture when visiting a friend on a tourist visa. So I don't think the courts would hold the rules to be that inflexible.
      - nknighthb 13y ago
        > surely you aren't required to stop your work just because you are in the country Of course you are. Look up the B-1 visa. It covers exactly what you're talking about. http://travel.state.gov/visa/temp/types/types_1262.html http://travel.state.gov/visa/temp/types/types_1262.html

einhverfr 13y ago

Ummmm I think it is two questions.... 1. Is it legal to be living in the US? No, in that case (you are correct) 2. Does it break additional laws to be working in the US in this situation? I doubt it. Traditionally there is a distinction between "employees" and "corporate officers."

nknighthb 13y ago
The immigration laws do not distinguish based on the label you attach to your employment status. A non-citizen cannot legally perform work in the United States without an immigration status that explicitly allows it (e.g. permanent residency or some form of work visa). Neither ICE nor the courts will be impressed with the argument that you don't call yourself an employee. They don't care. You're performing work in the United States. Nothing else is relevant.
- einhverfr 13y ago
  My points are: 1. They can deport you anyway. 2. It isn't clear that the LLC is violating any laws for having corporate officers who run afoul with immigration laws. 3. It isn't clear that the corporate officer is subjected to any additional penalties for such work. If you aren't going to spend an additional day in jail or have additional legal sanctions for certain behavior, then the argument is entirely academic. In short, yes they can throw them out of the country. My question is.... What other penalties come up for doing the work? If there are none, then it doesn't matter, the only real crime is overstaying the visa, entering illegally, or the like. And yes immigration can make their lives worse if they want to return. But immigration can do this even if no laws have been broken. So my question: What, if any, additional penalties attach to an illegal immigrant for the actions of serving as a corporate officer?
  - nknighthb 13y ago
    > 2. It isn't clear that the LLC is violating any laws for having corporate officers who run afoul with immigration laws. Corporate officers are just as much employees as anyone else. Where is this idea that they're something else coming from? By the way, 8 USC 1325(d): "Any individual who knowingly establishes a commercial enterprise for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, fined in accordance with title 18, or both."

jonemo 13y ago

Minor nitpick: Visa status != Immigration status For example: As a student you can have an expired F1 visa in your passport, but as long as your I-20 document is kept valid and you are attending school you are fine. The visa is only of concern when crossing the border.

raverbashing 13y ago
Correct This also applied for regular B visas, if it expires on day X you have until day X to cross the border, but the maximum duration of your stay is determined by the officer, regardless of the remaining visa duration.
hpagey 13y ago
Exactly you do not need a Visa to be in status. Another example of valid status without the need of visa is I-485 pending status. Lots of people who have applied for i-145 ( adjustment of status from non immigrant to immigrant) are legally allowed to be in the US and enter the US without Visa.