Thursday, June 16, 2011

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  • jung.lee
    04-04 12:55 AM
    :confused::confused:We cannot start a S-corp on EAD. Need to be GC holder or US Citizen.
    ...
    Should a Corporation's owners later wish to be taxed as an S-Corporation, they would file a "Subchapter S" federal tax election (Form 2553) within 75 days of incorporating or within 75 days of the beginning of the calendar year. To do this, the Corporation would need to have less than 100 owners, all of whom must be either U.S. Citizens or permanent resident aliens ("green card" holders). Once the "S" tax election is made, the return to be filed is the 1120 "S", rather than the 1120. Whether or not you decide to be taxed as an S-Corporation, your company is still a "General Corporation" in the eyes of the state of incorporation.
    ...
    [
    But we can setup Solo or Partership or C-Corp. Don't run into legal issues by setting up S-Corp on EAD, before getting GC.

    Good luck.

    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!




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  • soorigadu2003
    07-11 09:46 AM
    GREAT NEWS...
    but why is USCIS website not showing Aug bulletin ?




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  • yabadaba
    07-11 12:01 PM
    heres the thing..we have been talking about the 2004 hump for eb2 for a while now. if you download the perm data from 2005 you will see only 7000+ PERM approvals for India. this included a significant number of EB3 other worker categories like pipe welder, cook, etc ( i am assuming they were eb3 -other worker...correct me if i m wrong)

    this was the breakdown per month for perm 2005

    March-1
    April -13
    May-72
    June-324
    July-351
    Aug-833
    Sept-1172
    Oct-1212
    Nov-1541
    Dec-1771

    7290 - includes everybody - eb2, eb3, eb3 other workers

    the whole question was the hump of 2004-march2005

    ithis is the first time since when retrogression started on oct 1 2005, that the dates have moved beyond 2005.




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  • santb1975
    05-29 10:48 PM
    Thankyou for your contribution

    Receipt ID: 0375-0762-4300-7538

    Let's keep 'em comming!



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  • gc_on_demand
    12-11 05:06 PM
    Administration may not want to add that right now. I had poll long back to find out many of us are interested into it . Only few replied , with limited resources we cannot achieve any thing.

    IV core had same and similar job , AC21 on agenda for this year's agenda. FOIA was small side project at that time.

    Now coming to main point ... We see so many news that CIR is coming in early 2010. Administration may not want to add pre registration at that time when CIR passes and all dates become C for 2- 3 years. Then this pre registration will not help as long as you have labor approved. Whole admin fix is based on rule making process and that takes near to 6 months. Also new forms and new memo to all CIS dis offices. Way too for CIS my friend. They can be only on track with new process after year.

    If we could have done that last year then it might be helpful. Even I recently did some research and found that Pre registration process that those lawyers talks to attract us is for H1B. CIS wants to implement for H1B and then try out for other non immi worker category and then for Green card applicants. I bet you we will get GC by then.

    So we can contribute to IV and have IV to work on our stuff. Removal of country cap , STEM , Recapture etc.. That should easy line for all of us ( EB2 and EB3 )




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  • mbawa2574
    07-06 01:56 PM
    Guys for sake of transparency and moving ahead with a change, we should hold elections for the core team. Lobbying efforts are not working at all.



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  • gccube
    07-18 05:11 PM
    Consider I-485 Processing as a 2 Door Room. Front Door is for people who's PD has been current for the given month and can apply & Back Door is for Adjudicating People who are already applied & still current for that month.

    The size of the room depends on what date they retrogress it to. If Cutoff date is say 2002, there are few people in that room who would be ready for adjudication. Instead if cutoff date is say 2006, there will be a huge number of people in the room.

    As long as you stay in that room for more month (be current), the more chance you have of getting adjudicated fast, but also depends on how many people are ahead of you per RD.


    Assuming that the date is retrogressed from 'C' to 2000 Jan, they start accepting the AOS apps with that PD and then do we assume that they are also working on them or say they donot work on it until the receipt date becomes current.

    If the answer to the question above is 'NO' (that is the receipt date has to become current to adjudicate an AOS app, ofcourse PD has to be current too) then why is that USCIS accepting apps with a specified PD cut off date. In this case I am not looking at the people who are already in the room but am wondering why they are letting more people into the room, particularly when there is no room.

    If the answer to the question above it 'YES', that means PD does play a significant role in the AOS adjudication process when there is retrogression, in my opinion.




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  • Green.Tech
    06-20 02:20 PM
    Bump w/o $$$!



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  • vinabath
    05-01 02:33 PM
    We pay tons of fees to USCIS

    The fee we pay is very less compare to what we pay to Attorneys. And USCIS cannot drastically increase fees. And we are stuck. That is the reality.

    I think we should cut a check of same amount what we pay to attorneys.




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  • san1007
    12-26 10:48 PM
    I filed the AP on July 25 and receipt date is Aug 26. Still didn't get the AP. Few of my friends applied after me got AP already. Don't know what is going on



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  • amitjoey
    05-06 12:21 PM
    Any sample letters to Senators with the 'text' outlined for this current cause?
    I'm thinking duly signed letters have more impact.

    We have sent letters in the past only to get a standard CANNED answer. It is my opinion that the letters we send do not have any impact, cos as soon as they see "Immigration" as the subject, they (staff) sends the standard letter they have definining the position back.

    I do not mean to discourage you, but the need of the hour is to call all the senators. There are 100 of them.

    If you were going to do something in addition to the phone calls, Please set up an appointment w/the senator or staff and do a 20 minute Powerpoint presentation. That is more effective.




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  • chanduv23
    10-16 04:42 PM
    good post - add a poll to it



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  • pointlesswait
    12-11 09:25 AM
    There are so many who missed the July 07...

    we should try to seek temporary relief..allowing to file for 485 even without PD veing current.


    CIR will happen when it has to happen..maybe after the health bill ...but IV not doing anything else while waiting for it is sad....


    I left old job 10 months before July 07. But attorney at new employer did mistake with advertisement, and PERM got rejected. Applied again, and USCIS audited all Fragomen cases, so mine stuck there attorney being Fragomen. By then July 07 was gone. In Sept 08 again my PD (Nov 05) was current but I was stuck with Audit.... Finally I got PERM approved, 140 approved, but since then NOV 05 is far far away....




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  • marwan234
    09-04 01:27 PM
    Hi,
    I live in colorado...my H1B is going to expire Oct 27...I have not applied for H1B Extn. yet...But i have EAD...According to colorado DMV i should be able to use EAD for driving license extn...but does using EAD invalidates my H1B??...i am planning to apply for my H1B extn this week...but i won't be able to get approval in 3 weeks (assuming i do premium processing)...Please help me.

    Presenting your EAD to DMV for verification does not invalidate your H1B status. Only when you present it to your employer and if he fills out form I-9 and if USCIS requests verification of employment then you will need to worry about that.



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  • gondalguru
    07-22 03:29 PM
    My case was filed on Feb 27th. Still pending. No response from Atlanta. I have 11 more days to go and after that it doesn't matter when I get my PERM as I would be locked out for potentially 5-6 years! This system is not fair at all...if I was working in one of the western states, I could have filed even today and get certified in 2-3 days....

    I feel really sorry for you and yes you are right. This system is not fair at all. It needs complete overhaul.




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  • satishku_2000
    07-05 03:15 PM
    I just spoke with an Immigration Representative of my Senator. She knows me as I met her last year with my employer for my other issue.

    She just informed me that we are (Not only we but whole Congress) shocked with un-precedent action of DOS/USCIS for July VB. Senator's Washington DC office is working on this issue including immediate legislative relief to Employment Based immigration. She is well aware of whole drama of July VB. I am going to call Washington DC Office as well.

    I encourage every one call to their Senator and HR and speak with Immigration Representative. I think first time media and lawmakers have acknowledged the problem of Employment Based Immigration.

    Call make much impact than the email/fax
    Can you tell me who are your senators?



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  • H1Girl
    09-10 02:08 PM
    The discrepancy is due to the fact that you are looking at visa bulletin from 2 different month. The bulletin on State department's website is for September and the one on Mumbai consulate's website is supposed to be for October.

    or, he/she should have compared them yester day as they were same as of 09/10




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  • franklin
    09-28 08:11 PM
    Huge surprise

    Good job there aren't any inefficiencies in processing...

    ...Oh.... wait!




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  • HV000
    07-23 12:42 PM
    DEMOCRATIC SENATORS like Hilary, Biden, Obama, Kerry, Kennedy,
    Dodd, Durbin blah blahed a lot for ILLEGAL IMMIGRATION but DID NOT HELP SKILLED IMMIGRANTS!!!

    MOST OF THE REPUBLICANS HELPED US!!




    losthope
    06-11 08:11 PM
    Great Details!! Everything is possible...someone has to sacrifice for people to listen

    I would like to bring another point . What is the stand from the immigration attorney on recapturing visa number? Can't they do something on pushing on this? They made allot of money from immigration petition filing




    Libra
    09-11 09:14 PM
    zinchak thank you for your contribution.



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