skv
06-20 10:55 AM
may 11 was five weeks back......its third week of june right now!!!
Still no favorable movements...I do not wanna miss this July deadline....I am sure dates for EB3 will retrogress in August.....then ticket to India and UAE!!
Americas loss will be UAE's gain
I understand your concern. Hope for the best. Good luck friend!
Still no favorable movements...I do not wanna miss this July deadline....I am sure dates for EB3 will retrogress in August.....then ticket to India and UAE!!
Americas loss will be UAE's gain
I understand your concern. Hope for the best. Good luck friend!
meridiani.planum
09-11 11:29 PM
Can one even file a lawsuit against USCIS ?? :D
this is the United States. You can file a lawsuit against ANYONE :D
this is the United States. You can file a lawsuit against ANYONE :D
qplearn
12-18 05:54 PM
you are right, and it would be nice, however
it's clear our funds are not exactly astronomical.
so let's concentrate on building them up first along with our membership.
then we can sit back and worry about how much more is really needed....
For instance, I am sure maintaining this web site must cost money. How much more money is needed for our main cost drivers until March (for instance) --- by which time we are hoping some action will be taken?
Adding more members will always help because it produces a bigger impact on senators/ house reps
it's clear our funds are not exactly astronomical.
so let's concentrate on building them up first along with our membership.
then we can sit back and worry about how much more is really needed....
For instance, I am sure maintaining this web site must cost money. How much more money is needed for our main cost drivers until March (for instance) --- by which time we are hoping some action will be taken?
Adding more members will always help because it produces a bigger impact on senators/ house reps
gctest
09-15 04:19 PM
That memo/document you pointed out is an interpretation. We have already said that USCIS's interpretation is incorrect. We intend to correct this interpretation with this lawsuit.
Infact, it would be wrong to call this a lawsuit.
We are aiming for an injunction (or a stay order) in step 1 of the lawsuit that would prevent USCIS from working on any interfiling/PD porting requests.
If the injunction is with retroactive effect, all the EBs (not just EB3) who have ported their PDs will have their cases frozen. USCIS would not be able to work on them.
The remainder of the lawsuit can take its sweet time... the injunction should serve the primary cause.
Incorrect.
Please read this pdf document
AFM Update: Chapter 22: Employment-based Petitions (http://www.uscis.gov/files/pressrelease/afm_ch22_091206R.pdf)
Please pay attention to section (3) Priority Date Based on Earlier Petition on page 28 -
----------------------------------------------------------------------------------------
If an alien is the beneficiary of two (or more) approved employment-based immigrant visa petitions, the priority of the earlier petition may be applied to all subsequently-filed employment-based petitions.
For example:
Company A files a labor certification request on behalf of an alien ("Joe") as a janitor on January 10, 2003. The DOL issues the certification on March 20, 2003. Company A later files, and USCIS approves, a relating I-140 visa petition under the EB-3 category. On July 15, 2003, Joe files a second I-140 visa petition in his own behalf as a rocket scientist under the EB-1 category, which USCIS approves. Joe is entitled to use the January 10, 2003, priority date to apply for adjustment under either the EB-1 or the EB-3 classification.
--------------------------------------------------------------------------------------
I suggest, you talk to an attorney before using words like illegal. It may be unfair, but still be legal.
_____________________________________
Proud Indian-American and Legal Immigrant
Infact, it would be wrong to call this a lawsuit.
We are aiming for an injunction (or a stay order) in step 1 of the lawsuit that would prevent USCIS from working on any interfiling/PD porting requests.
If the injunction is with retroactive effect, all the EBs (not just EB3) who have ported their PDs will have their cases frozen. USCIS would not be able to work on them.
The remainder of the lawsuit can take its sweet time... the injunction should serve the primary cause.
Incorrect.
Please read this pdf document
AFM Update: Chapter 22: Employment-based Petitions (http://www.uscis.gov/files/pressrelease/afm_ch22_091206R.pdf)
Please pay attention to section (3) Priority Date Based on Earlier Petition on page 28 -
----------------------------------------------------------------------------------------
If an alien is the beneficiary of two (or more) approved employment-based immigrant visa petitions, the priority of the earlier petition may be applied to all subsequently-filed employment-based petitions.
For example:
Company A files a labor certification request on behalf of an alien ("Joe") as a janitor on January 10, 2003. The DOL issues the certification on March 20, 2003. Company A later files, and USCIS approves, a relating I-140 visa petition under the EB-3 category. On July 15, 2003, Joe files a second I-140 visa petition in his own behalf as a rocket scientist under the EB-1 category, which USCIS approves. Joe is entitled to use the January 10, 2003, priority date to apply for adjustment under either the EB-1 or the EB-3 classification.
--------------------------------------------------------------------------------------
I suggest, you talk to an attorney before using words like illegal. It may be unfair, but still be legal.
_____________________________________
Proud Indian-American and Legal Immigrant
more...
funny
09-11 04:35 PM
Count me in too..
pappu
06-04 01:59 PM
One one hand you have folks who are getting labor approvals from BECs just now and have not filed I-140s.
On other hand you have PERM folks who have Labor, I-140 certified in 2 weeks.
Don't you think this provision is a bit harsh on those who've waited 3+ years for labor in BECs ?
Not a bit harsh but very harsh. There are cases of people who have waited for 5 years and are still stuck in BEC. Now if this bill passes, they will have to apply all over again. There are also people who have gone through the PERM process and have not applied I140. Sometimes PERM process can take upto 1 year if the HR and Lawyer is slow in the recruitment process and unresponsive.
On other hand you have PERM folks who have Labor, I-140 certified in 2 weeks.
Don't you think this provision is a bit harsh on those who've waited 3+ years for labor in BECs ?
Not a bit harsh but very harsh. There are cases of people who have waited for 5 years and are still stuck in BEC. Now if this bill passes, they will have to apply all over again. There are also people who have gone through the PERM process and have not applied I140. Sometimes PERM process can take upto 1 year if the HR and Lawyer is slow in the recruitment process and unresponsive.
more...
desi3933
07-06 10:50 AM
....
Although 30,000 people are IV members but when you need them except a couple of hundred you don't see anyone.
How can an organization work which can't even collect 5K a month from its members. We all are willing to spend hundreds ( sometimes thousands ) of dollars on EAD, AP , H1, labor, I-140, I-485, lawyers etc etc and don't even spend 100$ a year (yes not month - a year).
......
.....
>> Although 30,000 people are IV members
I beg to differ here. 30k+ plus people have signed up so far, but how many are active now? How many have even logged in IV in last 3 months or even 6 months? I don't see any link to discontinue membership here, so we don't know how many people up signed up and left?
There is no way to know count of "active members". Many IV members have got GC in last 2 years and they have "quitely" left IV and forgotten the struggle by EB based immigrants. How many members stay at IV after getting GC?
Many people believe that by getting EAD they are Temp GC holders and motivation for seeking any benefit is gone.
I am pained to say this, but we are a thankless community.
.
Although 30,000 people are IV members but when you need them except a couple of hundred you don't see anyone.
How can an organization work which can't even collect 5K a month from its members. We all are willing to spend hundreds ( sometimes thousands ) of dollars on EAD, AP , H1, labor, I-140, I-485, lawyers etc etc and don't even spend 100$ a year (yes not month - a year).
......
.....
>> Although 30,000 people are IV members
I beg to differ here. 30k+ plus people have signed up so far, but how many are active now? How many have even logged in IV in last 3 months or even 6 months? I don't see any link to discontinue membership here, so we don't know how many people up signed up and left?
There is no way to know count of "active members". Many IV members have got GC in last 2 years and they have "quitely" left IV and forgotten the struggle by EB based immigrants. How many members stay at IV after getting GC?
Many people believe that by getting EAD they are Temp GC holders and motivation for seeking any benefit is gone.
I am pained to say this, but we are a thankless community.
.
reddymjm
09-10 09:56 AM
I am in EB2 with a US Master's degree. My priority date is April 2006 and my case is not approved. Many of friends same boat as me are not approved.
So "reddymjm" I don't think all US Master's degree in EB2 are approved.
I meant most of the approvals are US Master Degrees.
So "reddymjm" I don't think all US Master's degree in EB2 are approved.
I meant most of the approvals are US Master Degrees.
more...
Milind123
09-12 11:39 PM
Done
Changed the Equation
To Would be first time contributor,
Besides your other non-monetary contribution, IV needs your monetary contribution too.
People who havn't contributed, please take your first shot. Need just 2 people to contribute $100 each for now.
sam2006 and I will contribute $100 each. That makes $400 closer to the goal.
Changed the Equation
To Would be first time contributor,
Besides your other non-monetary contribution, IV needs your monetary contribution too.
People who havn't contributed, please take your first shot. Need just 2 people to contribute $100 each for now.
sam2006 and I will contribute $100 each. That makes $400 closer to the goal.
sam2006
09-13 07:46 PM
Milind123 you are the MAN !!!
IV is proud of you
IV is proud of you
more...
bigboy007
06-03 01:40 AM
I have opened sep thread for the same , i am sorry if this is not acceptable policy of forum and i am reposting as this topic originated here:
================================================== =
I have been following with different threads over articles of Susherman / AILA on abolishing Dual intent for H1B visa and very much , deeply curious about finding the same :
Since i myself new of all these different texts of various immigration laws it took me some time but i think i found out the nerve of it atlast.
Here it goes :
There are two important sections of Student visas.
this bill is carefully drafted against us [h1B and green card] such that this provision is included in student visas section.
================================================== ====
(c) CLARIFYING THE IMMIGRANT INTENT PROVISION.— Subsection (b) of
14 section 214 of the Immigration and Nationality Act (8 U.S.C. 1184(b))
15 is amended—
16
17 (1) by striking the parenthetical phrase “(other than a
18 nonimmigrant described in subparagraph (L) or (V) of section
19 101(a)(15), and other than a nonimmigrant described in any
20 provision of section 101(a)(15)(H)(i) except subclause (b1) of
21 such section) " in the first sentence; and
22
23 (2) by striking “under section 101(a)(15)" and inserting in its
24 place “under the immigration laws.".
25
26 (d) GRANTING DUAL INTENT TO CERTAIN NONIMMIGRANT STUDENTS.—
27 Subsection (h) of section 214 of the Immigration and Nationality Act
28 (8 U.S.C. 1184(h)) is amended—
29
30 (1) by inserting “(F)(iv)," following “(H)(i)(b) or (c),"; and
31
32 (2) by striking “if the alien had obtained a change of status" and
33 inserting in its place “if the alien had been admitted as, provided
34 status as, or obtained a change of status";
================================================== =====
what does (c) in Student visas do :
214(b) of Immigration and Nationality Act : defines whether the applicant has an immigration intent or not and in general avoids , H , L , etc visas out of this category.
As stated in US code of Law this is what it is :
================================================== ======
"Every alien (other than a nonimmigrant described in subparagraph (L) or (V) of section 1101 (a)(15) of this title, and other than a nonimmigrant described in any provision of section 1101 (a)(15)(H)(i) of this title except subclause (b1) of such section) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 1101 (a)(15) of this title. An alien who is an officer or employee of any foreign government or of any international organization entitled to enjoy privileges, exemptions, and immunities under the International Organizations Immunities Act [22 U.S.C. 288 et seq.], or an alien who is the attendant, servant, employee, or member of the immediate family of any such alien shall not be entitled to apply for or receive an immigrant visa, or to enter the United States as an immigrant unless he executes a written waiver in the same form and substance as is prescribed by section 1257 (b) of this title."
================================================== ======
By doing this (i.e. remove my Underlined and Bold letters) they making H1B prone to 214B clause and any CONSULAR officer can reject visa based on this statute as a H1B categorized as IMMIGRANT intent rather than earlier being non-immigrant.
Now i think this should not effect 485 or 140 or any immigration applications as still H1B holder is still categorized in DUAL Intent.
This is how : when (d) of the above Student visa section is applied this is how it turns :
This is from US code of rules pertaining to 8 U.S.C. 1184(h)
(h) Intention to abandon foreign residence
The fact that an alien is the beneficiary of an application for a preference status filed under section 1154 of this title or has otherwise sought permanent residence in the United States shall not constitute evidence of an intention to abandon a foreign residence for purposes of obtaining a visa as a nonimmigrant described in subparagraph (H)(i)(b) or (c),(F)(iv), (L), or (V) of section 1101 (a)(15) of this title or otherwise obtaining or maintaining the status of a nonimmigrant described in such subparagraph, if the alien had been admitted as, provided status as, or obtained a change of status under section 1258 of this title to a classification as such a nonimmigrant before the alien’s most recent departure from the United States.
================================================== ======
Section 1258 is nothing but Change of nonimmigrant classification which allows for change of status with in Non-immigrant visas.
based on all these , conclusion i see is : h1B visa can now be rejected ( if law passes and i wish , i pray and i am doing all my best it doesnt) under 214B for consular posts.
Still h1B is considered DUAL Intent as per above amendment as it doesnt remove 101 (a)(b) (H) as they are speciality workers that is we.
Please comment , i know i am not an immigration attorney with my knowledge i tried to relate things i am curious about this subject and i request all to comment on this and i feel i made a good judgment based on these resources i have please comment.
----------------------
But logically i also feel this H1B under 214B as doesnt logical for a person whose 140 is approved as in principle his intent of being Immigrant is approved.
================================================== =
I have been following with different threads over articles of Susherman / AILA on abolishing Dual intent for H1B visa and very much , deeply curious about finding the same :
Since i myself new of all these different texts of various immigration laws it took me some time but i think i found out the nerve of it atlast.
Here it goes :
There are two important sections of Student visas.
this bill is carefully drafted against us [h1B and green card] such that this provision is included in student visas section.
================================================== ====
(c) CLARIFYING THE IMMIGRANT INTENT PROVISION.— Subsection (b) of
14 section 214 of the Immigration and Nationality Act (8 U.S.C. 1184(b))
15 is amended—
16
17 (1) by striking the parenthetical phrase “(other than a
18 nonimmigrant described in subparagraph (L) or (V) of section
19 101(a)(15), and other than a nonimmigrant described in any
20 provision of section 101(a)(15)(H)(i) except subclause (b1) of
21 such section) " in the first sentence; and
22
23 (2) by striking “under section 101(a)(15)" and inserting in its
24 place “under the immigration laws.".
25
26 (d) GRANTING DUAL INTENT TO CERTAIN NONIMMIGRANT STUDENTS.—
27 Subsection (h) of section 214 of the Immigration and Nationality Act
28 (8 U.S.C. 1184(h)) is amended—
29
30 (1) by inserting “(F)(iv)," following “(H)(i)(b) or (c),"; and
31
32 (2) by striking “if the alien had obtained a change of status" and
33 inserting in its place “if the alien had been admitted as, provided
34 status as, or obtained a change of status";
================================================== =====
what does (c) in Student visas do :
214(b) of Immigration and Nationality Act : defines whether the applicant has an immigration intent or not and in general avoids , H , L , etc visas out of this category.
As stated in US code of Law this is what it is :
================================================== ======
"Every alien (other than a nonimmigrant described in subparagraph (L) or (V) of section 1101 (a)(15) of this title, and other than a nonimmigrant described in any provision of section 1101 (a)(15)(H)(i) of this title except subclause (b1) of such section) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 1101 (a)(15) of this title. An alien who is an officer or employee of any foreign government or of any international organization entitled to enjoy privileges, exemptions, and immunities under the International Organizations Immunities Act [22 U.S.C. 288 et seq.], or an alien who is the attendant, servant, employee, or member of the immediate family of any such alien shall not be entitled to apply for or receive an immigrant visa, or to enter the United States as an immigrant unless he executes a written waiver in the same form and substance as is prescribed by section 1257 (b) of this title."
================================================== ======
By doing this (i.e. remove my Underlined and Bold letters) they making H1B prone to 214B clause and any CONSULAR officer can reject visa based on this statute as a H1B categorized as IMMIGRANT intent rather than earlier being non-immigrant.
Now i think this should not effect 485 or 140 or any immigration applications as still H1B holder is still categorized in DUAL Intent.
This is how : when (d) of the above Student visa section is applied this is how it turns :
This is from US code of rules pertaining to 8 U.S.C. 1184(h)
(h) Intention to abandon foreign residence
The fact that an alien is the beneficiary of an application for a preference status filed under section 1154 of this title or has otherwise sought permanent residence in the United States shall not constitute evidence of an intention to abandon a foreign residence for purposes of obtaining a visa as a nonimmigrant described in subparagraph (H)(i)(b) or (c),(F)(iv), (L), or (V) of section 1101 (a)(15) of this title or otherwise obtaining or maintaining the status of a nonimmigrant described in such subparagraph, if the alien had been admitted as, provided status as, or obtained a change of status under section 1258 of this title to a classification as such a nonimmigrant before the alien’s most recent departure from the United States.
================================================== ======
Section 1258 is nothing but Change of nonimmigrant classification which allows for change of status with in Non-immigrant visas.
based on all these , conclusion i see is : h1B visa can now be rejected ( if law passes and i wish , i pray and i am doing all my best it doesnt) under 214B for consular posts.
Still h1B is considered DUAL Intent as per above amendment as it doesnt remove 101 (a)(b) (H) as they are speciality workers that is we.
Please comment , i know i am not an immigration attorney with my knowledge i tried to relate things i am curious about this subject and i request all to comment on this and i feel i made a good judgment based on these resources i have please comment.
----------------------
But logically i also feel this H1B under 214B as doesnt logical for a person whose 140 is approved as in principle his intent of being Immigrant is approved.
dummgelauft
06-11 09:43 AM
I would say fight back against the indirect discrimination against the Indian and Chinese nationals in the employment-based immigration.
If they want us to leave..then so be it..but they should say so directly. All India and Chinese EB immigrants please leave USA. Until that comes out of the US government directly, we can not be forced out through indirect policies.
Here are a few things you can do:
1) Withdraw all the $ you deposited in US banks from savings, checking, CDs and other investment accounts and setup an NRE account with an indian bank and move funds over. If you need you can bring back those funds in a day or two. Leave only bare minimum for your expenses in US banks. This would have an impact of ~$50K X 100K effect.
2) Do not leave the country just because the hopes of greencard are controlled, sqeeze out every $ from your jobs and economy as long as you are here.
3) Spend minimum and buy swadeshi when possible. Lets not give back even 10% of the income we make back into the economy. This is an economic blockade.
USCIS and US government has long harassed Indians in the name of greencard for a longtime and year after year we hear the same BS. Come on people, show some self-respect and fight back.
4) Those who are in foreclosure, stop paying your mortgage, your home is going to get foreclosed anyway.
5) Despite all this...those who still decide to leave to India, max out all your credit cards, leave your car in airport and abandon your home/apt without paying rent/mortgage for the few months before you leave.
TAKE all you can from your hard-lived and harassed lives out of this place before you do decide to move.
I am not keeping more than 5K in any of my US banks starting today. I am also pulling back from my mortgage application for 300K condo. I am determined to sell-off my investments in equities here and begin investing in BSE.
That is the least I could do to peacefully protest against the discrimination against me and my country people.
True to your handle, your ideas if implemented, can turn the tide (or move the mountain) as Sri Hanuman did!!
BUT, amigo, seriously, don't you think we, Indians as a community, are the biggest sell-outs. Only somebody with the caliber of Subhash Chandra Bose can bring us together
If they want us to leave..then so be it..but they should say so directly. All India and Chinese EB immigrants please leave USA. Until that comes out of the US government directly, we can not be forced out through indirect policies.
Here are a few things you can do:
1) Withdraw all the $ you deposited in US banks from savings, checking, CDs and other investment accounts and setup an NRE account with an indian bank and move funds over. If you need you can bring back those funds in a day or two. Leave only bare minimum for your expenses in US banks. This would have an impact of ~$50K X 100K effect.
2) Do not leave the country just because the hopes of greencard are controlled, sqeeze out every $ from your jobs and economy as long as you are here.
3) Spend minimum and buy swadeshi when possible. Lets not give back even 10% of the income we make back into the economy. This is an economic blockade.
USCIS and US government has long harassed Indians in the name of greencard for a longtime and year after year we hear the same BS. Come on people, show some self-respect and fight back.
4) Those who are in foreclosure, stop paying your mortgage, your home is going to get foreclosed anyway.
5) Despite all this...those who still decide to leave to India, max out all your credit cards, leave your car in airport and abandon your home/apt without paying rent/mortgage for the few months before you leave.
TAKE all you can from your hard-lived and harassed lives out of this place before you do decide to move.
I am not keeping more than 5K in any of my US banks starting today. I am also pulling back from my mortgage application for 300K condo. I am determined to sell-off my investments in equities here and begin investing in BSE.
That is the least I could do to peacefully protest against the discrimination against me and my country people.
True to your handle, your ideas if implemented, can turn the tide (or move the mountain) as Sri Hanuman did!!
BUT, amigo, seriously, don't you think we, Indians as a community, are the biggest sell-outs. Only somebody with the caliber of Subhash Chandra Bose can bring us together
more...
gc_maine2
04-04 10:27 AM
:confused::confused:
I am excerpting Internal Revenue Code Section 1361 below:
Internal Revenue Code
� 1361 S corporation defined.
(a) S corporation defined.
(1) In general.
For purposes of this title, the term �S corporation� means, with respect to any taxable year, a small business corporation for which an election under section 1362(a) is in effect for such year.
(2) C corporation.
For purposes of this title, the term �C corporation� means, with respect to any taxable year, a corporation which is not an S corporation for such year.
(b) Small business corporation.
(1) In general.
For purposes of this subchapter, the term �small business corporation� means a domestic corporation which is not an ineligible corporation and which does not�
(A) have more than 100 shareholders,
(B) have as a shareholder a person (other than an estate, a trust described in subsection (c)(2) , or an organization described in subsection (c)(6) ) who is not an individual,
(C) have a nonresident alien as a shareholder, and
(D) have more than 1 class of stock.
(2) Ineligible corporation defined.
For purposes of paragraph (1) , the term �ineligible corporation� means any corporation which is�
(A) a financial institution which uses the reserve method of accounting for bad debts described in section 585 ,
(B) an insurance company subject to tax under subchapter L,
(C) a corporation to which an election under section 936 applies, or
(D) a DISC or former DISC.
There is no mention here that the "resident" must be a permanent resident.
Here is an excerpt of the Federal Regulation that defines who is a "resident alien" for taxation purposes:
Reg �1.871-2. Determining residence of alien individuals.
Caution: The Treasury has not yet amended Reg � 1.871-2 to reflect changes made by P.L. 108-357
(a) General. The term �nonresident alien individual� means an individual whose residence is not within the United States, and who is not a citizen of the United States. The term includes a nonresident alien fiduciary. For such purpose the term �fiduciary� shall have the meaning assigned to it by section 7701(a)(6) and the regulations in Part 301 of this chapter (Regulations on Procedure and Administration). For presumption as to an alien's nonresidence, see paragraph (b) of �1.871-4.
(b) Residence defined. An alien actually present in the United States who is not a mere transient or sojourner is a resident of the United States for purposes of the income tax. Whether he is a transient is determined by his intentions with regard to the length and nature of his stay. A mere floating intention, indefinite as to time, to return to another country is not sufficient to constitute him a transient. If he lives in the United States and has no definite intention as to his stay, he is a resident. One who comes to the United States for a definite purpose which in its nature may be promptly accomplished is a transient; but, if his purpose is of such a nature that an extended stay may be necessary for its accomplishment, and to that end the alien make his home temporarily in the United States, he becomes a resident, though it may be his intention at all times to return to his domicile abroad when the purpose for which he came has been consummated or abandoned. An alien whose stay in the United States is limited to a definite period by the immigration laws is not a resident of the United States within the meaning of this section, in the absence of exceptional circumstances.
Here is the relevant Federal Regulation on Proof of Residence for determining status for tax purposes:
Reg �1.871-4. Proof of residence of aliens.
(a) Rules of evidence. The following rules of evidence shall govern in determining whether or not an alien within the United States has acquired residence therein for purposes of the income tax.
(b) Nonresidence presumed. An alien, by reason of his alienage, is presumed to be a nonresident alien.
(c) Presumption rebutted.
(1) Departing alien. In the case of an alien who presents himself for determination of tax liability before departure from the United States, the presumption as to the alien's nonresidence may be overcome by proof�
(i) That the alien, at least six months before the date he so presents himself, has filed a declaration of his intention to become a citizen of the United States under the naturalization laws; or
(ii) That the alien, at least six months before the date he so presents himself, has filed Form 1078 or its equivalent; or
(iii) Of acts and statements of the alien showing a definite intention to acquire residence in the United States or showing that his stay in the United States has been of such an extended nature as to constitute him a resident.
(2) Other aliens. In the case of other aliens, the presumption as to the alien's nonresidence may be overcome by proof�
(i) That the alien has filed a declaration of his intention to become a citizen of the United States under the naturalization laws; or
(ii) That the alien has filed Form 1078 or its equivalent; or
(iii) Of acts and statements of the alien showing a definite intention to acquire residence in the United States or showing that his stay in the United States has been of such an extended nature as to constitute him a resident.
(d) Certificate. If, in the application of paragraphs (c)(1)(iii) or (2)(iii) of this section, the internal revenue officer or employee who examines the alien is in doubt as to the facts, such officer or employee may, to assist him in determining the facts, require a certificate or certificates setting forth the facts relied upon by the alien seeking to overcome the presumption. Each such certificate, which shall contain, or be verified by, a written declaration that it is made under the penalties of perjury, shall be executed by some credible person or persons, other than the alien and members of his family, who have known the alien at least six months before the date of execution of the certificate or certificates.
(c) Application and effective dates. Unless the context indicates otherwise, ��1.871-2 through 1.871-5 apply to determine the residence of aliens for taxable years beginning before January 1, 1985. To determine the residence of aliens for taxable years beginning after December 31, 1984, see section 7701(b) and ��301.7701(b)-1 through 301.7701(b)-9 of this chapter. However, for purposes of determining whether an individual is a qualified individual under section 911(d)(1)(A), the rules of ��1.871-2 and 1.871-5 shall continue to apply for taxable years beginning after December 31, 1984. For purposes of determining whether an individual is a resident of the United States for estate and gift tax purposes, see �20.0-1(b)(1) and (2) and � 25.2501-1(b) of this chapter, respectively.
In summary, I submit to you that if you work in the US for more than 6 months out of a given year, you are a resident alien, and therefore are eligible to set up an S-Corp.
Since I am still learning about this, any input/feedback/logical arguments with relevant proof/citations would be appreciated!
Very good info, thanks for the posting. BUt its still not clear whether the spouse who is on EAD and does not work at all or for that matter 6 months in a given year, will she/he be eligible for setting up a S -corp??
Thanks
sree
I am excerpting Internal Revenue Code Section 1361 below:
Internal Revenue Code
� 1361 S corporation defined.
(a) S corporation defined.
(1) In general.
For purposes of this title, the term �S corporation� means, with respect to any taxable year, a small business corporation for which an election under section 1362(a) is in effect for such year.
(2) C corporation.
For purposes of this title, the term �C corporation� means, with respect to any taxable year, a corporation which is not an S corporation for such year.
(b) Small business corporation.
(1) In general.
For purposes of this subchapter, the term �small business corporation� means a domestic corporation which is not an ineligible corporation and which does not�
(A) have more than 100 shareholders,
(B) have as a shareholder a person (other than an estate, a trust described in subsection (c)(2) , or an organization described in subsection (c)(6) ) who is not an individual,
(C) have a nonresident alien as a shareholder, and
(D) have more than 1 class of stock.
(2) Ineligible corporation defined.
For purposes of paragraph (1) , the term �ineligible corporation� means any corporation which is�
(A) a financial institution which uses the reserve method of accounting for bad debts described in section 585 ,
(B) an insurance company subject to tax under subchapter L,
(C) a corporation to which an election under section 936 applies, or
(D) a DISC or former DISC.
There is no mention here that the "resident" must be a permanent resident.
Here is an excerpt of the Federal Regulation that defines who is a "resident alien" for taxation purposes:
Reg �1.871-2. Determining residence of alien individuals.
Caution: The Treasury has not yet amended Reg � 1.871-2 to reflect changes made by P.L. 108-357
(a) General. The term �nonresident alien individual� means an individual whose residence is not within the United States, and who is not a citizen of the United States. The term includes a nonresident alien fiduciary. For such purpose the term �fiduciary� shall have the meaning assigned to it by section 7701(a)(6) and the regulations in Part 301 of this chapter (Regulations on Procedure and Administration). For presumption as to an alien's nonresidence, see paragraph (b) of �1.871-4.
(b) Residence defined. An alien actually present in the United States who is not a mere transient or sojourner is a resident of the United States for purposes of the income tax. Whether he is a transient is determined by his intentions with regard to the length and nature of his stay. A mere floating intention, indefinite as to time, to return to another country is not sufficient to constitute him a transient. If he lives in the United States and has no definite intention as to his stay, he is a resident. One who comes to the United States for a definite purpose which in its nature may be promptly accomplished is a transient; but, if his purpose is of such a nature that an extended stay may be necessary for its accomplishment, and to that end the alien make his home temporarily in the United States, he becomes a resident, though it may be his intention at all times to return to his domicile abroad when the purpose for which he came has been consummated or abandoned. An alien whose stay in the United States is limited to a definite period by the immigration laws is not a resident of the United States within the meaning of this section, in the absence of exceptional circumstances.
Here is the relevant Federal Regulation on Proof of Residence for determining status for tax purposes:
Reg �1.871-4. Proof of residence of aliens.
(a) Rules of evidence. The following rules of evidence shall govern in determining whether or not an alien within the United States has acquired residence therein for purposes of the income tax.
(b) Nonresidence presumed. An alien, by reason of his alienage, is presumed to be a nonresident alien.
(c) Presumption rebutted.
(1) Departing alien. In the case of an alien who presents himself for determination of tax liability before departure from the United States, the presumption as to the alien's nonresidence may be overcome by proof�
(i) That the alien, at least six months before the date he so presents himself, has filed a declaration of his intention to become a citizen of the United States under the naturalization laws; or
(ii) That the alien, at least six months before the date he so presents himself, has filed Form 1078 or its equivalent; or
(iii) Of acts and statements of the alien showing a definite intention to acquire residence in the United States or showing that his stay in the United States has been of such an extended nature as to constitute him a resident.
(2) Other aliens. In the case of other aliens, the presumption as to the alien's nonresidence may be overcome by proof�
(i) That the alien has filed a declaration of his intention to become a citizen of the United States under the naturalization laws; or
(ii) That the alien has filed Form 1078 or its equivalent; or
(iii) Of acts and statements of the alien showing a definite intention to acquire residence in the United States or showing that his stay in the United States has been of such an extended nature as to constitute him a resident.
(d) Certificate. If, in the application of paragraphs (c)(1)(iii) or (2)(iii) of this section, the internal revenue officer or employee who examines the alien is in doubt as to the facts, such officer or employee may, to assist him in determining the facts, require a certificate or certificates setting forth the facts relied upon by the alien seeking to overcome the presumption. Each such certificate, which shall contain, or be verified by, a written declaration that it is made under the penalties of perjury, shall be executed by some credible person or persons, other than the alien and members of his family, who have known the alien at least six months before the date of execution of the certificate or certificates.
(c) Application and effective dates. Unless the context indicates otherwise, ��1.871-2 through 1.871-5 apply to determine the residence of aliens for taxable years beginning before January 1, 1985. To determine the residence of aliens for taxable years beginning after December 31, 1984, see section 7701(b) and ��301.7701(b)-1 through 301.7701(b)-9 of this chapter. However, for purposes of determining whether an individual is a qualified individual under section 911(d)(1)(A), the rules of ��1.871-2 and 1.871-5 shall continue to apply for taxable years beginning after December 31, 1984. For purposes of determining whether an individual is a resident of the United States for estate and gift tax purposes, see �20.0-1(b)(1) and (2) and � 25.2501-1(b) of this chapter, respectively.
In summary, I submit to you that if you work in the US for more than 6 months out of a given year, you are a resident alien, and therefore are eligible to set up an S-Corp.
Since I am still learning about this, any input/feedback/logical arguments with relevant proof/citations would be appreciated!
Very good info, thanks for the posting. BUt its still not clear whether the spouse who is on EAD and does not work at all or for that matter 6 months in a given year, will she/he be eligible for setting up a S -corp??
Thanks
sree
vsk74
01-05 12:54 PM
Hi,
I applied for labor certification in Dec2004 .I got a 45 day letter 6 months back.My application in Philadelphia back log center.When i am seeing the status it is showing IN PROCESS.Can anyone tell me what will be the time frame after receiving 45 day letter.Intially i applied from FLORIDA.Can anyone tell me wat is current processing time.
I applied for labor certification in Dec2004 .I got a 45 day letter 6 months back.My application in Philadelphia back log center.When i am seeing the status it is showing IN PROCESS.Can anyone tell me what will be the time frame after receiving 45 day letter.Intially i applied from FLORIDA.Can anyone tell me wat is current processing time.
more...
lonedesi
08-14 02:25 PM
Has any of the members who sent out the letter & Form received any response from Ombudsman's office. Please post as and when you receive any response.
newuser
07-18 12:35 PM
As a $20 recurring contributor till now, I am upgrading my monthly contribution to $50 from today onwards.
Good luck to everyone and my wishes to IV CORE.
Also IV membership just crossed the 21000 mark.
Threads: 5,912, Posts: 118,961, Members: 21,000 , Active Members: 14,163
Good luck to everyone and my wishes to IV CORE.
Also IV membership just crossed the 21000 mark.
Threads: 5,912, Posts: 118,961, Members: 21,000 , Active Members: 14,163
more...
rb_248
01-06 09:13 AM
His speech was contradicting at some instances. However, what I could conclude was that Indian and Chinese workers can be trained well and are more flexible than American workers. If you listen the speech again with this trainability factor (which he did not consider in his study), his contradicting assertations makes sense.
Blessing&Lifeisbeautiful
07-24 04:27 PM
My lawyers have just said I will NOT get an EAD because I don't have a visascreen. EVEN though I have a USA RN license.
Has anyone heard of this. This is a first for me.
Anyone with advice? Please help
BLIB
Has anyone heard of this. This is a first for me.
Anyone with advice? Please help
BLIB
JDV
07-19 02:29 PM
Hi Folks,
I just contributeD $100. I am very glad to be part of IV. Keep up the good work!!
Regards,
I just contributeD $100. I am very glad to be part of IV. Keep up the good work!!
Regards,
ItIsNotFunny
12-17 03:24 PM
I think most of the members in this forum updated their data, at least from EB3 India I am sure. If you guys can pull data according to PD from administration console, you should be able get some valuable data to show. I wondered why this has not been done so far??? million dollar question???
Do we have any data available from FOIA request? Anyone?
Do we have any data available from FOIA request? Anyone?
GCBy3000
01-10 11:16 AM
Everyone passes this stage. I was in the same boat sometime back and I did not think about applying for greencard.
When I reached 4.5years in my H1, my debts were not decreased. Infact it increased as I invested in India and in some tangile properties in US. So I thought I should stay here for more time to clear those debts. To stay for more time, I needed this stupid GC. It was needed atleast to extend my H1 to start with.
So my piece of advice for you is to start this process as it is not going to hurt you when you are mentally prepared to leave US. If you get it, it is good. If you dont get it, you have nothing to lose. At least you will the option to extend your H1 if you decide to stay for more time.
I am one of those guys who entered US in a very late age (I am 35 now...) and haven't even started the Green Card process yet. I wonder everyday "if" and when the process gets started..how many years it would take to get GC (may be 5 to 6 years..correct me if I am wrong)...and after getting the GC..wait for another 5+ years to get Citizenship...I will be close to 50...ouch
Well, as of today I don't feel like applying for GC...I realized my dream of coming and working in US...now the plan is to spend 4 to 5 years, clear my debts (yeah......running into thousands of dollars)...make some money to live peacefully in India..thats it....then go back to India....
And its not just the family or friends...95% of my cousins and 90% of my friends are in US (trust me it is a large number)..except for parents and in-laws (and uncles, aunts)...every one is here...but I hardly get a chance to meet them...b'cos no one wants to take some time off to meet cousins/friends (unless you are in drivable distance)..I don't blame them (or me)..since we all want to save our PTO to visit India....
I just wish..if I can spin the time wheel back...I would never think of a foreign country....(even though I am new to US..I spent about 8 years abroad in other countries already)..
I don't feel like concluding..hence leaving this incomplete...
thanks for reading
When I reached 4.5years in my H1, my debts were not decreased. Infact it increased as I invested in India and in some tangile properties in US. So I thought I should stay here for more time to clear those debts. To stay for more time, I needed this stupid GC. It was needed atleast to extend my H1 to start with.
So my piece of advice for you is to start this process as it is not going to hurt you when you are mentally prepared to leave US. If you get it, it is good. If you dont get it, you have nothing to lose. At least you will the option to extend your H1 if you decide to stay for more time.
I am one of those guys who entered US in a very late age (I am 35 now...) and haven't even started the Green Card process yet. I wonder everyday "if" and when the process gets started..how many years it would take to get GC (may be 5 to 6 years..correct me if I am wrong)...and after getting the GC..wait for another 5+ years to get Citizenship...I will be close to 50...ouch
Well, as of today I don't feel like applying for GC...I realized my dream of coming and working in US...now the plan is to spend 4 to 5 years, clear my debts (yeah......running into thousands of dollars)...make some money to live peacefully in India..thats it....then go back to India....
And its not just the family or friends...95% of my cousins and 90% of my friends are in US (trust me it is a large number)..except for parents and in-laws (and uncles, aunts)...every one is here...but I hardly get a chance to meet them...b'cos no one wants to take some time off to meet cousins/friends (unless you are in drivable distance)..I don't blame them (or me)..since we all want to save our PTO to visit India....
I just wish..if I can spin the time wheel back...I would never think of a foreign country....(even though I am new to US..I spent about 8 years abroad in other countries already)..
I don't feel like concluding..hence leaving this incomplete...
thanks for reading
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