If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can't answer every question, but if you ask a short question that can be answered concisely, we'll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.

Q- I'm an H-1B visa holder.  Am I allowed to open businesses in the United States?  Particularly LLC? 

A - H-1B visa holders can go through the process of creating a company and the form of the company does not matter. But as soon as that company begins operations, the H-1B visa holder needs to either switch to simply an investor role as opposed to actively managing the enterprise OR get a concurrent H-1B visa to work in the business. Note that it is often tough to get an H-1B visa for an employer of a new business because it is necessary to show the new business has the ability to pay the worker the prevailing wage.

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Q - I wonder if I can change employers after I file an EB1 or EB-2 green card application?  I am a research scientist at a university.

A - It depends. In an EB-1 extraordinary ability case, moving institutions is probably not a big deal since you can self-petition and the focus is on your background. In an EB-1 outstanding researcher case, it is employer-sponsored so moving could create problems. In an EB-2 national interest case, you can move but the question is whether you are doing the same kind of work at the new institution. In an EB-2 labor certification case, you have the same problem as the outstanding researcher. You should consult with your immigration lawyer before moving employers.

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Q - My father was born in Taiwan and subsequently became a naturalized Canadian Citizen.  He now is a green card holder living in the US eligible for US citizenship.  Would he have to give up his Canadian citizenship if he decides to pursue his US citizenship? 

A - No, both the US and Canada recognize dual citizenship.

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Q - I have been hired by a company with only 4 employees. 2 are US Citizens and one is going to be an H1B visa holder. Can the company sponsor me and this person or does the company need to be a bigger one with more employees?

A - There is no minimum size for a US company to hire someone in H-1B status. The key is that the company be a real enterprise and that it demonstrate that it meets the normal requirements for the H-1B (it needs you, the job is professional, it intends to pay the prevailing wage, etc.). Small businesses tend to get hung up on the prevailing wage issue. The USCIS will often challenge smaller businesses on the question of whether they have the ability to pay the offered salary. So your immigration lawyer will need to focus on providing good documentation to address this question.

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Q – I am a green card holder petitioning for a green card for my spouse who is not in US.  Info on BCIS web indicates that form I-485 can not be filed before a visa number is assigned. Will my spouse be given a visa after passing her Consular interview or visa will be issued after the I-485 process is completed?

A - I think you are confused about how the process works. If you are a permanent resident sponsoring a spouse in the Family Second category, you can only file an I-130 at the regional service center of the USCIS. All this does, in essence, is a claim a place in the queue for your spouse since there is a limit on the number of family-based green cards available. The F2 green card category is backlogged several years. So until your spouse moves to the front of the queue, there will be nothing happening in your case. The I-485 you mention is for people who are in the US and who have a visa number available. That would include spouses of permanent residents who had waited the several years for the green card to become current. More often, it includes spouses of people who become US citizens (there is no queue for this group; they can apply for an I-485 immediately). Note that filing the I-130 does not give your spouse the right to remain in the US. To be in the US, your spouse would need a non-immigrant visa of some sort - work visa, student visa, etc. If your spouse cannot get in the US in a non-immigrant category while waiting through the green card queue, she would need to wait outside the US and then eventually interview at a consulate when she is at the front of the queue.