1099 on EAD [Archive] - Immigration Voice

kshitijnt

07-09-2009, 01:21 PM

Hello All,

After being without job for almost 2 months, I am getting an offer for a short term project on 1099. Project is in my field and my job responsibilites are exactly same as what was approved on my labor. I am a Jul 07 filer.

Now, if in the next few months I get any Employement Verification RFE, what are my options? How can I answer the RFE while on 1099? What kind of documentation will I need? Has anyone successfully answered an EV RFE while on 1099?

OR

Is being on 1099 while on EAD a bad idea and I should stay away from it?

Related questions - I am not planning to file AC21 at this time as this is a short term contract and I don't want to 'notify' USCIS of any changes at this time. Can there be any potential issues of not filing for AC21 in such cases? My EAD will be up for renewal in Sept 2010 and I am hoping to be in a full time permanant position by then.

Thanks all for you replies!!!

- S

Nobody is going to promise you more than 6 weeks to 3 months in todays economy. I would say explore the "self employment" option by using EAD. Consult a lawyer and no need to file AC21. Let them find out. Keep looking for better options. All the best!

kshitijnt

07-09-2009, 01:22 PM

well, the question then would be, has anyone been denied after presenting an EVL which states the employee is a consultant ?

Getting a letter is not a big deal. What if I am a full time consultant in that company?

FinalGC

07-09-2009, 01:34 PM

browncow

07-09-2009, 01:39 PM

The problem will come, if you have an RFE for employment. If you get a letter from client, they will say that the company has employed, say for example Mr John as a Programmer Analyst for a period of 1 year. This will open up one major issue, that is you do not work for a company. The H1 and 485 is an application that is sponsored by a company, there is no clause for self sponsor. So when they see u are self sponsored, they could reject your 485.

Yes, that is understood.
The question is if one has worked as a contractor and got a employment RFE and the company provided a letter stating a full time consultant job, has USCIS rejected such a response?

desi3933

07-09-2009, 01:48 PM

kshitijnt

07-09-2009, 02:02 PM

Dear Friend:

Attached is the AC21 memo. Good luck. In my opinion, it clearly allows Self Employment.

Set up a LLC company or sole proprietorship and work with an attorney. Keep the paperwork tight and upto date. If permanent offer is hard to come by , you got to do what you got to do in a legal way :) All the best!

kshitijnt

07-09-2009, 02:05 PM

damn the attachment. Sorry buddy I tried cant upload here.

FinalGC

07-09-2009, 02:06 PM

sanju_dba

07-09-2009, 02:07 PM

Dear Friend:

Attached is the AC21 memo. Good luck. In my opinion, it clearly allows Self Employment.

where is the attachment?

It was a long time dialogue from various websites / including my attorney , that you cannot work for your own company on AC21 basis.

kshitijnt

07-09-2009, 02:24 PM

where is the attachment?

It was a long time dialogue from various websites / including my attorney , that you cannot work for your own company on AC21 basis.

http://www.ilw.com/lawyers/immigdaily/news/2005,0520-ac21.pdf

Here is the link. Your attorney is not the law. Some other attorney might say you can do it.

desi3933

07-09-2009, 02:27 PM

where is the attachment?

Here is the memo. USCIS Link
(http://www.uscis.gov/files/pressrelease/AC21intrm051205.pdf)
Refer to Page 6.

Question 8. Can an alien port to self-employment under INA § 204(j)?

Answer: Yes, as long as the requirements are met. First, the key is whether the employment is in a "same or similar" occupational classification as the job for which the original I-140 petition was filed.
..............

.

JazzByTheBay

07-09-2009, 02:37 PM

Good to have this as reference and thanks for pointing out the ability to port to self-employment as part of AC21 portability.

jazz

http://www.ilw.com/lawyers/immigdaily/news/2005,0520-ac21.pdf

Here is the link. Your attorney is not the law. Some other attorney might say you can do it.

desi3933

07-09-2009, 02:38 PM

.....
Set up a LLC company or sole proprietorship and work with an attorney. Keep the paperwork tight and upto date.
....

Setting up company is just the first step for Self-Employment. The key things is to demonstrate that new job is in same/similar classification and company has offered "bonafide" job, not just job on paper.

BTW, it is not necessary to have LLC. The corporate structure could be S-Corp or C-Corp also.

__________________
Not a legal advice.

fittan

07-09-2009, 02:40 PM

Yes, that is understood.
The question is if one has worked as a contractor and got a employment RFE and the company provided a letter stating a full time consultant job, has USCIS rejected such a response?

I have not heard of any rejection. But, the fact that you're receving 1099-MISC means that you're not full time. In fact, you're not even an employee for the company. If you receive an RFE, I assume you'll need to produce paystubs (which the OP don't have). In addition, you won't even get 1099-MISC until the year end. In short, no proof to overturn RFE.

IF the company can produce such a letter, technically it is a fraud since the OP is NOT a full-time employee. Replying to RFE with no proof and fraud intend won't fly.

Fittan

Ramba

07-09-2009, 02:41 PM

Getting a letter is not a big deal. What if I am a full time consultant in that company?

consultant does not consitute employer-employee relationship. This WILL NOT satisfy the full time permanant employment.

getgc2008

07-09-2009, 02:41 PM

kshitijnt

07-09-2009, 02:45 PM

consultant does not consitute employer-employee relationship. This WILL NOT satisfy the full time permanant employment.

Oh yeah. All big time consulting companies must lay off foreign workers then, myself included. My perm was filed as IT programmer, IT consultants job code. So am I not a full time employee of consulting company? Is USCIS fool to approve my I140? Not once but twice!

kshitijnt

07-09-2009, 02:48 PM

I am in a similar position but working on 3 months contract through a consulting company on w2. It is similar to my 485 job details, but it is a short term project.

Would I get an RFE if I work on contract on W2?

In my personal opinion, you should look out for permanent offers. I tend to prefer 1099 contracts as opposed to W-2 because 1099s tend to make stronger case for self employment.

supreet

07-09-2009, 02:54 PM

Thanks so much everyone for your replies. I am planning to go for this job, I guess it will be better to be self-employed rather than unemployed.

However, a few follow up questions.

1. I realize on 1099 I will not have any pay stubs or offer letter (as pointed by someone). How can I respond to a Employment Verification RFE? What documentory proof will I need to answer the RFE?

2. If I can get an offer letter for 'Contract to Hire' will that be an appropriate response to any potential EVL RFE? Will it be ok if the full time joing date is say 3 months from now? First 6 months on 1099 and then full time hire?

3. Is it better to go corp-to-corp through another vendor instead of 1099? That way I can have pay stubs/offer letter through a vendor company which will produce my pay stubs (even though I will lose about 20% of my billing rate)?

Just an additional detail, my job duties are going to be exactly same as what was approved on my labor.

Your help is highly appreciated.

Thanks!!

- S

chi_shark

07-09-2009, 02:55 PM

I have not heard of any rejection. But, the fact that you're receving 1099-MISC means that you're not full time. In fact, you're not even an employee for the company. If you receive an RFE, I assume you'll need to produce paystubs (which the OP don't have). In addition, you won't even get 1099-MISC until the year end. In short, no proof to overturn RFE.

IF the company can produce such a letter, technically it is a fraud since the OP is NOT a full-time employee. Replying to RFE with no proof and fraud intend won't fly.

Fittan

payslips are not "required" only thing needed is a proof that you have been offered a job that meets all those conditions we all know about. technically, you dont even need to be working when you get RFE... ac21 memo allows self employment very clearly and distinctly. however, it also allows for two things: 1) it allows the IO to ask whatever questions they want to ensure that the job is legitimate and not a fraud. 2) it allows the IO to investigate if there was truly an intention between the beneficiary and the petitioner who applied for I-140 at the time of filing for I-140 AND at the time of filing I-485 (if not con-current). Fortunately, the IO is limited to investigating all this only by means of RFE (i.e. he cannot send the FBI or CIA behind you).

the problem for you and for me is that all this shit has not been proven in court... will you be the first person to take this risk? if you respond to RFE and then they deny your 485 and then you fight a case to overturn that denial, then it will set a precedent in case law that can be applied to all of us... so, please do it and let us know! :-)

i incorporated last year but did not do any business... instead i took a full time job with a well known company... I am shutting down my inc this year... i have already responded to an RFE with an EVL from my employer... i wish they could clarify on this policy... as per AC21 memo, they dont have any problem with self employment...

Ramba

07-09-2009, 02:57 PM

Setting up company is just the first step for Self-Employment. The key things is to demonstrate that new job is in same/similar classification and company has offered "bonafide" job, not just job on paper.

BTW, it is not necessary to have LLC. The corporate structure could be S-Corp or C-Corp also.

__________________
Not a legal advice.

In this enforcement climate, self-employment is risky too. The memo is not a binding rule. Having said that, even if any one chose to self employment, they must have very proper documents including long-term contract agreement with few clients, that explanis the service you provide shold be in-line with orginal I-140 job duties. In current H1B denial rate becuse of client letters RFE, the self employed AC21 cases shold be more prepared, in case of RFE.

desi3933

07-09-2009, 03:17 PM

Oh yeah. All big time consulting companies must lay off foreign workers then, myself included. My perm was filed as IT programmer, IT consultants job code. So am I not a full time employee of consulting company? Is USCIS fool to approve my I140? Not once but twice!

Two things
1. Consultant can be part of job title and/or duties. Key thing is that job must be permanent and full-time.
2. PERM can only be filed for job that are permanent and full time.

.

kshitijnt

07-09-2009, 03:28 PM

Two things
1. Consultant can be part of job title and/or duties. Key thing is that job must be permanent and full-time.
2. PERM can only be filed for job that are permanent and full time.

.

I know that , I had a rebuttal for consultant does not constitute employer employee relationship argument. It does not for the end client but does for the agency or consulting co.

chanduv23

07-09-2009, 03:34 PM

Two things
1. Consultant can be part of job title and/or duties. Key thing is that job must be permanent and full-time.
2. PERM can only be filed for job that are permanent and full time.

.

I have talked to few people who do self employment. This is what they have to say.

"As long as the job duties are same or similar, it is fine",
"You must be a W2 employee of your firm"
"The key is constant business and income - which can be proved via paystubs and/or contracts - in case it is requested for"

I am also trying to do some research on this.

A lot of people do go for self employment so no need to be scared as long as the employment is legitimate.

desi3933

07-09-2009, 03:40 PM

.....
A lot of people do go for self employment so no need to be scared as long as the employment is legitimate.

Thanks Chandu.

This one line summaries well what is needed for Self-Employment.

.

supreet

07-09-2009, 04:22 PM

Thanks Chandu.

This one line summaries well what is needed for Self-Employment.

.
This offer is from a big consulting/outsourcing company. But the question is, what documentary proof do I need to prove that the employment is legitimate. Specially since I will not have an offer letter/employment letter.

Thanks!!

sankap

07-09-2009, 08:35 PM

chanduv23

07-09-2009, 09:12 PM

Desi393, FinalGC, Ramba:

You've mentioned a few times on this forum that on AC21, the job needs to be "permanent." That is misinformation, since the Yates memo you quote doesn't say that. Also, what do you mean by a "permanent" job? I haven't seen a job offer letter in the US saying that the job would be "permanent" (whatever that means). Also, what do you mean by "legitimate
" employment? Could you quote a USCIS resource?

Another misinformation I've seen on this forum is advising people to "file AC21." First, no USCIS resource mentions that. Second, you're are *not* required by USCIS to inform them of every job change if you're invoking AC21.

sankap - I think these folks are asking you to be cautious. AC21 RFEs request if the prospects of employment.
the "permanant" job means "the job is always there" as per projection.

even if your employer has consulting business - as long as you are employed with this employer under w2 "yours" is a "permanant job" at that time projected - things MAY change later.

The same works with self - employment. As long as your self employed as drawing w2 salary and doing the same duties - it is permanant employment.

So lets not get confused here. If you project that your current job is ONLY temporary in nature then that does not qualify as a permanant job.

Being self employed and doing consulting work means you r constantly doing projects under your own corp which is perm job.

Lets discuss this in detail - i will get back to this as my kid is not allowing me to type now

sankap

07-09-2009, 09:34 PM

Supreet:

Based on my extensive research on the topic:

1. You can safely take the 1099 contract offer on EAD. In case of an EVL RFE, your recruiting company (the one giving you paycheck) should be able to give you an EVL. As I've noted below, the job need *not* be "permanent," unlike what others have mentioned on this forum. The EVL needs to only mention your job title, duties, and start date, not salary (unless specifically asked for). You do *not* need to provide any paystubs.
2. For salary received on 1099, you'll file taxes as "self-employed." IRS website has extensive resources on filing as self-employed vs. LLC.
3. Under corp-to-cop arrangement, you need to have a tax ID. Many clients/"bodyshoppers" will only consider a C2C arrangement. You can either do this by setting up your own LLC OR by incorporating (as a C-corp or S-Corp--again refer to IRS website or PM me if you need more info) OR through another corporation (e.g., on someone holding your H1B (you being their W2 employee)--not needed in your case). You can file your taxes as a "Self-employed" on any of these options, and can also claim deductions on job-related expenses (e.g., mileage, travel+lodging if you're traveling out of town)--so these options are monetarily better than being on W2, which is working not as self-employed.
4. You're never needed to "file AC21." First, no USCIS resource mentions procedure for that. Second, you're are *not* required by USCIS to inform them of every job change if you're invoking AC21.

Bottom line: Go ahead with this opportunity on 1099, report this income as "Self-employed," deducting any job-related expenses, and ensure that the recruiting company will give you an EVL *if* needed. I'm *guessing* that if self-employed, you can also write your own EVL (stating start date as your W2-job layoff date and a "projected" yearly income, if asked for). In that case, registering your company with the county (~$20) or opening an LLC (~$400) may help. Last, no need to "file AC21" or inform the USCIS of your job change, since it's not required.

Thanks so much everyone for your replies. I am planning to go for this job, I guess it will be better to be self-employed rather than unemployed.

However, a few follow up questions.

1. I realize on 1099 I will not have any pay stubs or offer letter (as pointed by someone). How can I respond to a Employment Verification RFE? What documentory proof will I need to answer the RFE?

2. If I can get an offer letter for 'Contract to Hire' will that be an appropriate response to any potential EVL RFE? Will it be ok if the full time joing date is say 3 months from now? First 6 months on 1099 and then full time hire?

3. Is it better to go corp-to-corp through another vendor instead of 1099? That way I can have pay stubs/offer letter through a vendor company which will produce my pay stubs (even though I will lose about 20% of my billing rate)?

Just an additional detail, my job duties are going to be exactly same as what was approved on my labor.

Your help is highly appreciated.

Thanks!!

- S

desi3933

07-09-2009, 09:46 PM

Desi393, FinalGC, Ramba:

You've mentioned a few times on this forum that on AC21, the job needs to be "permanent." That is misinformation.....

First read this post.

http://immigrationvoice.org/forum/473142-post12.html

This should clear your doubt. You can read RFE issued by USCIS on other forum as well. The word "permanent" is right there.

.

desi3933

07-09-2009, 09:49 PM

Supreet:

...... As I've noted below, the job need *not* be "permanent," unlike what others have mentioned on this forum. The EVL needs to only mention your job title, duties, and start date, not salary. You do *not* need to provide ant paystubs. ......

Supreet -

I strongly dispute that. I encourage you to consult an attorney before taking any action.

AC-21 job must be "permanent and full-time" just like I-140. Simple. Infact, please put your question in attorney forum and get it confirmed right there.

.

sankap

07-09-2009, 10:00 PM

Chandu,

1. "W2 Self-employed" is an oxymoron. Self-employed option is possible through 1099. Nowhere on the Yates memo (or any other USCIS resource) does it say that you have to be on a "permanent" job. You sure can be self-employed (i.e., not on a W2) with AC21 provision, as the Yates memo clearly says.

[Now, you can be self-employed with unlimited liability. If you want to reduce your liability, you can open an LLC, which gives you the freedom of filing your income taxes either as a "Sole Proprietor," a "C-Corp," or an "S-Corp." (Please see IRS website for tax implications, e.g., http://www.irs.gov/businesses/small/article/0,,id=154770,00.html)]

Also, no employer can give you an EVL saying "permanent" job, nor are you required by USCIS to mention that, nor your salary (unless asked for), nor the date when your job ends. Therefore, your statement that "As long as your self employed as drawing w2 salary and doing the same duties - it is permanent employment" is wrong for two reasons. One, you can't be on W2 AND self-employed for the same job (you can, though, open a part-time business on EAD with same/similar responsibility as your labor cert, and file that income as a "Self-employed," or as a "C-Corp," or as an "S-Corp"). Two, your definition/interpretation of "permanent job" is wrong: No job in this country can be permanent (legally speaking), and I haven't seen *any* job offer letter saying it would be a "permanent" job. Also, being on W2 doesn't imply or guarantee that you're on a "permanent job:" Jobs in most states are "at will."

2. You're *not* required by USCIS to notify them of your job change under AC21 provision. Nor is there anything called "filing AC21."

I agree with you that these two topics need discussion and closure, following which you may want to change your wiki article on "How to File AC21."

sankap - I think these folks are asking you to be cautious. AC21 RFEs request if the prospects of employment.
the "permanant" job means "the job is always there" as per projection.

even if your employer has consulting business - as long as you are employed with this employer under w2 "yours" is a "permanant job" at that time projected - things MAY change later.

The same works with self - employment. As long as your self employed as drawing w2 salary and doing the same duties - it is permanant employment.

So lets not get confused here. If you project that your current job is ONLY temporary in nature then that does not qualify as a permanant job.

Being self employed and doing consulting work means you r constantly doing projects under your own corp which is perm job.

Lets discuss this in detail - i will get back to this as my kid is not allowing me to type now

sankap

07-09-2009, 10:20 PM

In that case, I *guess* you can show yourself as "permanently self-employed" for your own company--should be easy if you have an LLC that does business in "same or similar" occupation (e.g., consulting/PM). Should also be easy to state the *projected" yearly income on EVL.

First read this post.

http://immigrationvoice.org/forum/473142-post12.html

This should clear your doubt. You can read RFE issued by USCIS on other forum as well. The word "permanent" is right there.

.

sankap

07-09-2009, 10:47 PM

I agree: you should take legal advice from as many attorneys as possible. In my experience with multiple attorneys on these topics (i.e., self-employed vs. W2 on EAD, and "filing" AC21), I got conflicting pieces of advice. So the only resources I could base my thinking on are USCIS and IRS.

Supreet -

I strongly dispute that. I encourage you to consult an attorney before taking any action.

AC-21 job must be "permanent and full-time" just like I-140. Simple. Infact, please put your question in attorney forum and get it confirmed right there.

.

desi3933

07-09-2009, 11:02 PM

Chandu,

1. "W2 Self-employed" is an oxymoron. Self-employed option is possible through 1099. You sure can be self-employed (i.e., not on a W2) with AC21 provision, as the Yates memo clearly says.

Sankap -

Please allow me to explain this in detail. Please feel free to verify this information with attorney of your choice.

1. W2 Self Employed simply means that one has controlling equity in the employer company. For example - I am employed by corp that is, in part, owned by me since I hold a % of shares. I get paid on W2, just like any other employee in the corp.

2. Any memo (including Yates memo) supplements the existing federal regulations. They do not replace them. In any case, memo does not have force of law. In case of contradictory info, memo must "bow" to federal regulations and court rulings.

3. I-140 is for permannet and full time job only. See Page 5 of
http://www.uscis.gov/files/form/i-140instr.pdf

4. Also, read this. It says 'Permanent Employment'
OFLC Frequently Asked Questions and Answers (http://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#effdate1)

Question: What is the effective date of the new Labor Certification for the Permanent Employment of Aliens in the United States, or PERM, regulation?
Answer: The PERM regulation is effective March 28, 2005, and applies to labor certification applications for the permanent employment of aliens filed on or after that date.

5. AC-21 job must be of same type as I-140/labor job, hence must be permanent and full time.

6. Permanent Job does not mean "forever", It simply means that duration of employment is not known. A job with 6 year contract is a temporary job (since duration is known), hence all H-1B jobs are temporary in nature and called guest workers. A permanent can be terminated at any time, at will, or as agreed notice by both parties.

7. One is not required to notify AC-21 job, but should e ready to respond to EVL RFE that can come any time.

8. Most of the full time exempt jobs in this country are permanent in nature.

___________________
Not a legal advice.

sankap

07-09-2009, 11:58 PM

@desi3933:

1. From tax standpoint, W2 means the company (which could be fully/partly owned by you) is paying tax-at-source. On 1099, *you* do the taxes and hence the hourly rate on 1099 is typically more than that on W2. In fact, many staffing companies give you the option of working on a project or 1099 or W2. (Of course, the advantage of working on W2 is you can "transfer" your H-1B, if the company is willing to do that. But the advantage of working on 1099 or LLC is that you can deduct your business expenses, as a "Self-employed" or a Corporation.) Yes, you can be an owner of a corporation and file taxes as as a C-Corp or an S-Corp on W2, but not as a "Self-employed."

2. True, your I-140 petition is for a "permanent" (definition needed) and FT job, since the sponsoring company has (supposedly) an "intent" to hire the petitioner in the future. *But* AC21 provision helps you to change employers after 180 days of filing I-485, if your I-140 is approved. The new job has to be "same or similar" to the occupation your I-140 petition was filed for. The "permanent" intent of the original employer disappears under AC21 because you changed employers (or your original employer withdrew I-140, even though he had genuine "intent" at the time of I-140 filing to hire you in the future). I agree that "any memo (including Yates memo) supplements the existing federal regulations," but the Yates memo gives you the AC21 provision, which was a law signed by Pres. Bush.

3. It is wrong to *infer* that "AC-21 job must be of same type as I-140/labor job, hence must be permanent and full time." As I say in 2. above, the employer who filed your I-140 should have intent, *at I-140 filing time*, to hire you in the future. And that intent is not needed after 180 days of filing I-485 *and* approved I-140, regardless of whether your original employer continues or withdraws your I-140 petition.

4. You're wrong in your example of "A job with 6 year contract is a temporary job." I've often seen many "6-month contracts" getting extended to 1, 2, 3 years or indefinitely. Likewise, a "permanent" job may last a few months (e.g., because of a recession).

5. It is true that "all H-1B jobs are temporary in nature and called guest workers," but H-1B (compared with, say TN-1) is a dual intent visa. Once you file I-140, your intent (whether on H1 or EAD) becomes not that of a temporary visitor but as the one seeking a permanent stay in this country.

6. Again, it's wrong to assume that "most of full time exempt jobs in this country are permanent in nature." And even if they were permanent, in what sense?

7. On the link you cite, OFLC Frequently Asked Questions and Answers, the process for filing PERM is explained. The employer needs to fill out the Application for Permanent Employment Certification form. The PERM representation requirement does indeed say that "The job opportunity is for full-time, permanent employment for an employer other than the alien." First, how to judge a job as "permanent?" Second, just because the PERM has the requirement for a FT, "permanent" job, it doesn't imply that the "permanent" requirement would apply to the AC21 law.

I think we're running into into two issues here. The first one is related to semantics--i.e., what constitutes a "permanent" job? The second one is the *inference/assumption* that, because because I-140 requires you to be on a permanent, FT job (=sponsoring employer has "intent" to hire you in the future), your employment under AC21 provision should be "permanent".

7. Since you're *not* required to inform USCIS on your job changes, why "file AC21" (and stir things), or advise people to do so?

Sankap -

Please allow me to explain this in detail. Please feel free to verify this information with attorney of your choice.

1. W2 Self Employed simply means that one has controlling equity in the employer company. For example - I am employed by corp that is, in part, owned by me since I hold a % of shares. I get paid on W2, just like any other employee in the corp.

2. Any memo (including Yates memo) supplements the existing federal regulations. They do not replace them. In any case, memo does not have force of law. In case of contradictory info, memo must "bow" to federal regulations and court rulings.

3. I-140 is for permanent and full time job only. See Page 5 of
http://www.uscis.gov/files/form/i-140instr.pdf

4. Also, read this. It says 'Permanent Employment'
OFLC Frequently Asked Questions and Answers (http://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#effdate1)

5. AC-21 job must be of same type as I-140/labor job, hence must be permanent and full time.

6. Permanent Job does not mean "forever", It simply means that duration of employment is not known. A job with 6 year contract is a temporary job (since duration is known), hence all H-1B jobs are temporary in nature and called guest workers. A permanent can be terminated at any time, at will, or as agreed notice by both parties.

7. One is not required to notify AC-21 job, but should e ready to respond to EVL RFE that can come any time.

8. Most of the full time exempt jobs in this country are permanent in nature.

___________________
Not a legal advice.

desi3933

07-10-2009, 12:24 AM

@desi3933:

1. From tax standpoint, W2 means the company (could be fully/partly owned by you) is paying tax-at-source. On 1099, *you* do the taxes and hence the hourly rate on 1099 is typically more than that on W2. Yes, you can be an owner of a corporation and file taxes as as a C-Corp or an S-Corp on W2, but not as a "Self-employed."

2. Yes, I-140 is for "permanent" (definition needed) and FT job, since the sponsoring company has always an "intent" to hire the petitioner in the future. *But* AC21 provision helps you to change employers after 180 days of filing I-485, if your I-140 is approved. The new job has to be "same or similar" to the occupation your I-140 petition was filed for. The "permanent" intent of the original employer disappears under AC21 because you changed employers (or your original employer withdrew I-140, even though he had genuine "intent" at the time of I-140 filing to hire you in the future). I agree that "any memo (including Yates memo) supplements the existing federal regulations," but the Yates memo gives you the AC21 provision, which was a law signed by Pres. Bush.

3. It is wrong to *infer* that "AC-21 job must be of same type as I-140/labor job, hence must be permanent and full time." As I say in 2. above, the employer who filed your I-140 should have intent, *at I-140 filing time*, to hire you in the future. And that intent is not needed after 180 days of filing I-485 *and* approved I-140, regardless of whether your original employer continues or withdraws your I-140 petition.

4. You're wrong in your example of "A job with 6 year contract is a temporary job." I've often seen the "6-month contracts" getting extended to 1, 2, 3 years or indefinitely. Similarly, a "permanent" job may last a few months (e.g., because of a recession).

5. It is true that "all H-1B jobs are temporary in nature and called guest workers," but H-1B (compared with, say TN-1) is a dual intent visa. Once you file I-140, your intent (whether on H1 or EAD) becomes not that of a temporary visitor but as the one seeking a permanent stay in this country.

6. Again, it's wrong to assume that "most of full time exempt jobs in this country are permanent in nature." And even if they were permanent, in what sense?

I think we're running into into two issues here. The first one is related to semantics--i.e., what constitutes a "permanent" job? The second one is the *inference/assumption* that, because because I-140 requires you to be on a permanent, FT job (=sponsoring employer has "intent" to hire you in the future), your employment under AC21 provision should be "permanent".

1. You can be self employed on c-corp as well. Please go to bank of your choice and you will get the answer. I do have business accounts and speaking from my own experience.

2. Here is one RFE issued by USCIS. This should answer that AC-21 job must be permanent and match your labor/I-140

If you will no longer be employed by the original Form I-140 petitioner, you may still be eligible to adjust your status under the visa portability provisions of section 106© of the American Competitiveness in the Twenty-First Century Act (AC21), Public Law 106-313. This legislation permits certain adjustment applications to change employers without filing a new immigrant visa petition, provided they are:

The beneficiary of an immigrant petition approved under section 204(a)(1)(F) of the Act (previously 204(a)(1)(D)), AND The application for adjustment has been pending for more than 180 days, AND the new permanent position is in the same or similar occupational classification as the original employment.

If you now claim such eligibility, submit a letter from your new employer, describing your present job duties and position in the organization, your proffered position (if different from your current one), the date you began employment and the offered salary or wage. This letter must be in the original and signed by an executive or officer of the organization who is authorized to make or confirm an offer of permanent employment. The letter should also indicate whether the terms and conditions of your employment-based visa petition (or labor certification) continue to exist.

3. See point 2.

4. Contract extension does not mean job is permanent. And, yes, 6 year contract job is temporary in nature. Permanent job can not have end date. Period.

5. Dual intent visa means that it can be issued even if I-140 or I-130 has been filed on your behalf. Nothing more than that. GC job is independent of H-1B job.

6. Again, Permanent job is a job that is expected to last unknown term and is not defined for a period. H-1B job is not permanent since they have end date specified by LCA and H-1B visa petition.

7. Here is a case for I-140 that was denied, since offered I-140 job was not permanent full-time job. Read for yourself
Link to case (http://www.uscis.gov/err/B6%20-%20Skilled%20Workers,%20Professionals,%20and%20Oth er%20Workers/Decisions_Issued_in_2009/Jan022009_06B6203.pdf)

____________________
Not a legal advice.

desi3933

07-10-2009, 12:28 AM

....
7. Since you're *not* required to inform USCIS on your job changes, why "file AC21" (and stir things), or advise people to do so?

Please show me any of my post where I have advised people to file for AC-21.

.

number30

07-10-2009, 12:40 AM

In that case, I *guess* you can show yourself as "permanently self-employed" for your own company--should be easy if you have an LLC that does business in "same or similar" occupation (e.g., consulting/PM). Should also be easy to state the *projected" yearly income on EVL.

Problem with that argument once you own more than 5% of the company you will have file as investor. If your wife owns the company then you will have file under relative category. There were denials based on this.

sankap

07-10-2009, 12:45 AM

@desi3933:
This comment was then obviously was not directed to you but to others who advise to "file AC21." Please show me any of my post where I have advised people to file for AC-21.

.

sankap

07-10-2009, 01:04 AM

[QUOTE=desi3933;486996]1. You can be self employed on c-corp as well. Please go to bank of your choice and you will get the answer. I do have business accounts and speaking from my own experience.

Here are the IRS guidelines on filing taxes as an Independent Contractor (Self-Employed) or Employee: Independent Contractor (Self-Employed) or Employee? (http://www.irs.gov/businesses/small/article/0,,id=99921,00.html)

2. Here is one RFE issued by USCIS. This should answer that AC-21 job must be permanent and match your labor/I-140

Since nowhere do USCIS/DOL explain as to what constitutes a "permanent" job, one can *assume* that being self-employed (or working for a staffing company on contract) is a "permanent" job, regardless of the project's duration, and mention that on EVL. IRS guidelines could help: http://www.irs.gov/businesses/small/article/0,,id=154770,00.html

3. See point 2.

4. Contract extension does not mean job is permanent. And, yes, 6 year contract job is temporary in nature. Permanent job can not have end date. Period.

I didn't imply that "contract extension means job is permanent," as you inferred. Also, can you point us to a USCIS/DOL resource to confirm that definition of a "permanent" job?

5. Dual intent visa means that it can be issued even if I-140 or I-130 has been filed on your behalf. Nothing more than that. GC job is independent of H-1B job.

Yes, GC is always for a future job--it's got nothing to do with your H1B job. And here's what I saw on dual-intent visas:
"Under the Dual Intent Doctrine, some nonimmigrants are allowed to enter and/or remain in the U.S. temporarily with a nonimmigrant visa even though they have expressed a long term intent to remain permanently. Presently, only E, H-1 and L category visa holders are allowed to remain nonimmigrants while simultaneously pursuing permanent resident status. Other nonimmigrant visa holders may be denied extensions or re-issuance of a nonimmigrant visa if they appear to have a dual intent of coming to the U.S. temporarily while pursuing permanent resident status."

6. Again, Permanent job is a job that is expected to last unknown term and is not defined for a period.

Can you point us to a USCIS/DOL resource to confirm that definition of "permanent "job?

H-1B job is not permanent since they have end date specified by LCA and H-1B visa petition.

If *no* H1B job is "permanent," as you say, then how can that job be permanent after filing PERM or I-140? Second, following your argument, if you're on H-1B and changed employers using AC21, the new job wouldn't be considered "permanent," right? Third, if H-1B job is not "permanent," then which one is?

7. Here is a case for I-140 that was denied, since offered I-140 job was not permanent full-time job. Read for yourself
Link to case (http://www.uscis.gov/err/B6%20-%20Skilled%20Workers,%20Professionals,%20and%20Oth er%20Workers/Decisions_Issued_in_2009/Jan022009_06B6203.pdf)

Please read the document fully. It says the petition was denied because "the petitioner has not established its ability to pay the
proffered wages to the beneficiaries of the other petitions or the proffered wage for the instant beneficiary." Nothing related to whether the job was "permanent," FT. Also, As I said, there's a difference between being on a "permanent" future job (for which I-140 was filed) and being on a "permanent" job using AC21 provision.

sankap

07-10-2009, 01:16 AM

Could you point to a USCIS/IRS resource for this info?

QUOTE=number30;486999]Problem with that argument once you own more than 5% of the company you will have file as investor. [/QUOTE]

desi3933

07-10-2009, 06:50 AM

Problem with that argument once you own more than 5% of the company you will have file as investor. If your wife owns the company then you will have file under relative category. There were denials based on this.

Total BS. Do you have any reference link for case denials?

You are confusing filing new I-140 with employer (where beneficiary has >5% share) with AC-21 job change.

.

desi3933

07-10-2009, 06:54 AM

@desi3933:
This comment was then obviously was not directed to you but to others who advise to "file AC21."

Thanks, Sankap, for the clarification. Because, in this post you have addressed that post to me and asked me this as #7. Here is that post again -

@desi3933:

1. ....

7. Since you're *not* required to inform USCIS on your job changes, why "file AC21" (and stir things), or advise people to do so?

Please show me any of my post where I have advised people to file for AC-21.

.
.

chi_shark

07-10-2009, 10:18 AM

Problem with that argument once you own more than 5% of the company you will have file as investor. If your wife owns the company then you will have file under relative category. There were denials based on this.

Do you have evidence or can you point me in that direction where i can find some... this is for the bold text above...

chi_shark

07-10-2009, 10:32 AM

that link you have provided is for ability to pay and wage below dol standards case... i read the entire document and wasted 30 precious minutes of my time and a friends time reading that case... thank for nothing.

7. Here is a case for I-140 that was denied, since offered I-140 job was not permanent full-time job. Read for yourself
Link to case (http://www.uscis.gov/err/B6%20-%20Skilled%20Workers,%20Professionals,%20and%20Oth er%20Workers/Decisions_Issued_in_2009/Jan022009_06B6203.pdf)

____________________
Not a legal advice.

desi3933

07-10-2009, 10:43 AM

that link you have provided is for ability to pay and wage below dol standards case... i read the entire document and wasted 30 precious minutes of my time and a friends time reading that case... thank for nothing.

Page 5

Further, the director noted in his decision that the petitioner has not demonstrated that it is the intending employer offering the beneficiary a full-time, permanent position. The petitioner did not address this issue on appeal. Therefore, the petitioner has not demonstrated that it is the intending employer offering the beneficiary a full-time, permanent position.

.

desi3933

07-10-2009, 10:50 AM

that link you have provided is for ability to pay and wage below dol standards case... i read the entire document and wasted 30 precious minutes of my time and a friends time reading that case... thank for nothing.

I don't recall asking you to read anything. This is a public forum. You decide what to read. You are free to ignore my posts. ;)

By the way, it seems that you missed a part on Page 5 of the document. See my previous post if you are interested in what you missed.

.

desi3933

07-10-2009, 10:57 AM

Link to EB-1 case where I-140 was denied because job offered was not "permanent".

Link
http://www.uscis.gov/err/B3%20-%20Outstanding%20Professors%20and%20Researchers/Decisions_Issued_in_2004/MAR232004_01B3203.pdf

As per this document

Pursuant to regulations at 8 C.F.R. 9 204.5(i)(2), "permanent," in reference to a research position, means either tenured, tenure-track, or for a term of indefinite or unlimited duration, and in which the employee will ordinarily have an expectation of continued employment unless there is good cause for termination..

chi_shark

07-10-2009, 11:17 AM

I don't recall

...... You are free to ignore my posts. ;)

.

hmmm... it looks like, we both think alike! :-) how cool is that?

you've taken one sliver of info out of that case and making it seem like thats a primary issue... i dont doubt that what you are purporting is true... but your link pointed to something that was a complete waste of time... i agree that you need to have a permanent full time job and that permanent means indefinite in most cases related to immigration.

chi_shark

07-10-2009, 11:28 AM

so this case has some merrit, however, the very core of this case is based on the employment being annually renewable. which means that the petitioner had to take periodic active action to be employed with the university employer... thats where the argument broke down for the petitioner... further, it is VERY GOOD to know that USCIS actually made an attempt to consider this emloyment for I-140 approval. it is good to know that they deliberated and then decided to reject instead of summarily rejecting on prima facie facts. one more very good thing to know (and avoid for ourselves) is that the petitioner in this case represented himself (no lawyer). its possible that if there was a laywer involved, they could have brought up some more documentation or at least shown the light to the university's staff as far as requirements are concerned. further still: no talk was engaged into as far as ability to pay is concerned. FURTHER FURTHER still: this case is about I-140... and we are all talking primarily about I-485 and AC21 cases within....

looks like this case actually tells me that maybe we could do self-employment easily...

Link to EB-1 case where I-140 was denied because job offered was not "permanent".

Link
http://www.uscis.gov/err/B3%20-%20Outstanding%20Professors%20and%20Researchers/Decisions_Issued_in_2004/MAR232004_01B3203.pdf

As per this document
.

desi3933

07-10-2009, 11:42 AM

....

looks like this case actually tells me that maybe we could do self-employment easily...

The problem with self employment is demonstrate
1. AC-21 job is in same classification as original labor/I-140
2. New job is bonafide

In order to show that the new job is "real", one has to show
1. The business is real, not just paper shop
2. Business Plan, Funding to support employees
3. Any contracts, orders etc

If business is new, it becomes difficult to show that business can offer full time job to someone at say 60k salary per year. Now, if business has some capital funding or line of credit from bank or some long term contracts, then it is relatively easy to show that business can support employees.

The burden of proof, in case of RFE, lies on beneficiary.

__________________
Not a legal advice.

chi_shark

07-10-2009, 11:49 AM

desi,

so what is your point? i have no doubts that i can prove point 1, 2 and 3 below... i.e. real business, planned business (with only me as the employee), contracts and orders. i dont think anyone here is talking about a non-bonafide job with a "paper shop" (in your words)...

what is your point about If business is new, it becomes difficult to show that business can offer full time job to someone at say 60k salary per year? doesnt that sounds like "ability to pay" issue? if yes, that is not an issue at I-485 stage... the yates memo clearly states this...

The problem with self employment is demonstrate
1. AC-21 job is in same classification as original labor/I-140
2. New job is bonafide

In order to show that the new job is "real", one has to show
1. The business is real, not just paper shop
2. Business Plan, Funding to support employees
3. Any contracts, orders etc

If business is new, it becomes difficult to show that business can offer full time job to someone at say 60k salary per year. Now, if business has some capital funding or line of credit from bank or some long term contracts, then it is relatively easy to show that business can support employees.

The burden of proof, in case of RFE, lies on beneficiary.

__________________
Not a legal advice.

desi3933

07-10-2009, 11:55 AM

chi_shark

07-10-2009, 12:01 PM

same way you prove that in the case of I-140... by writing up letters exlaining job duties... and showing offer letter, pay stubs, company tax returns and/or quarterly tax receipts, client contracts... etc etc etc... again: what is your true point? why do you suspect that this is difficult?

Its not ability to pay issue? The main point is to show that job is real, and bonafine.

May I ask, how do you plan to demonstate that job offered in self employment is same/similar to I-140 job and it is bonafide job offer?

.

desi3933

07-10-2009, 12:14 PM

same way you prove that in the case of I-140... by writing up letters exlaining job duties... and showing offer letter, pay stubs, company tax returns and/or quarterly tax receipts, client contracts... etc etc etc...

Well, then you are covered.

again: what is your true point? why do you suspect that this is difficult?

Its not difficult if one is really running the business. It may be difficult for someone who is looking for job and opens a company to show self employment with nothing else going for that new business.

.

sankap

07-10-2009, 12:19 PM

@desi3933:

What's a "bona fide" job? Where did you see that a job needs to be"bona fide?"

Also, if you're self-employed, why can't you show that's a "legitimate" business? Who's asking for a business plan--and why should that be difficult to make if you're self-employed? Please, let's not *assume* things. We should base our opinions only on facts and evidence.

Its not ability to pay issue? The main point is to show that job is real, and bonafine.

May I ask, how do you plan to demonstate that job offered in self employment is same/similar to I-140 job and it is bonafide job offer?

.

desi3933

07-10-2009, 12:31 PM

@desi3933:

What's a "bona fide" job? Where did you see that a job needs to be"bona fide?"

Also, if you're self-employed, why can't you show that's a "legitimate" business? Who's asking for a business plan--and why should that be difficult to make if you're self-employed? Please, let's not *assume* things. We should base our opinions only on facts and evidence.

Are you suggesting that AC-21 job does not need to be bonafide?

First you claimed that AC-21 job does not need to be permanent. Then you claimed that AC-21 job does not be same/similar to labor/I-140. Now you have changed stand on these two after seeing one RFE example.

Now, you are saying new AC-21 job does not be bonafide. Do you even read what are you saying?

.

sankap

07-10-2009, 12:35 PM

@desi3933:
The problem with self employment is demonstrate
1. AC-21 job is in same classification as original labor/I-140

That's the easiest part to prove in case of self-employment. You can either just mention that on the EVL, or register your company with the county, or open an LLC. In the latter cases, they ask the nature of your business, and you can copy-paste that from your labor petition.

2. New job is bonafide

Where did you read that requirement? Assuming, again?

In order to show that the new job is "real", one has to show
1. The business is real, not just paper shop

A self-employed business is always real.

2. Business Plan, Funding to support employees
A business plan can be a 1-page document where you can cut-paste your labor job description. Costs and revenues should be easy to project. Also, in a self-employed business, there can be only one employee. You can also incorporate yourself.

3. Any contracts, orders etc
If business is new, it becomes difficult to show that business can offer full time job to someone at say 60k salary per year. Now, if business has some capital funding or line of credit from bank or some long term contracts, then it is relatively easy to show that business can support employees.

Why do you need funding in a one-person company? Also, the revenues could be *projected*, and you could say that on your business plan and EVL...

The burden of proof, in case of RFE, lies on beneficiary.

__________________
Not a legal advice.

desi3933

07-10-2009, 12:44 PM

.....
6. Again, Permanent job is a job that is expected to last unknown term and is not defined for a period.

Can you point us to a USCIS/DOL resource to confirm that definition of "permanent "job?

Permanent means job that is for for a term of indefinite or unlimited duration.
http://www.uscis.gov/err/B3%20-%20Outstanding%20Professors%20and%20Researchers/Decisions_Issued_in_2004/MAR232004_01B3203.pdf

.....
H-1B job is not permanent since they have end date specified by LCA and H-1B visa petition.

If *no* H1B job is "permanent," as you say, then how can that job be permanent after filing PERM or I-140? Second, following your argument, if you're on H-1B and changed employers using AC21, the new job wouldn't be considered "permanent," right? Third, if H-1B job is not "permanent," then which one is?

AC-21 is not just for changing GC employer.
AC-21 is for
1. H-1B portability - starting new H1-B immediately after filing opf new petition
2. Extension of H-1B beyond 6 years - if labor is pending > 365 days or I-140 is approved/pending. Since each H-1B petition is linked to LCA and LCA is for temp job, each H1 petition is a new or extension of temp job.
3. Changing of GC employer - Please note that you can change your GC employer even without changing job, just by getting job offer from new employer, as GC job is for job starting after I-485 approval.

Do not confuse existing H-1B job with future GC job.

H-1B is linked to LCA (Temp Job) (http://www.foreignlaborcert.doleta.gov/h-1b.cfm) Note: The link clearly says

The H-1B program allows an employer to temporarily employ a foreign worker in the U.S. on a nonimmigrant basis in a specialty occupation or as a fashion model of distinguished merit and ability.

On the other hand, I-140 is linked to Permanent Labor Certification (http://www.foreignlaborcert.doleta.gov/perm.cfm) (aka GC labor)

sankap

07-10-2009, 12:47 PM

@desi3933:
Are you suggesting that AC-21 job does not need to be bonafide?
Then you claimed that AC-21 job does not be same/similar to labor/I-140.
Where did I say that AC-21 job does not need to be the same as I-140 petition? It's clearly a requirement on the Yates memo. "Do you even read what are you saying" (to quote you)?

Second, re "permanent" job, the Yates memo clearly doesn't say that requirement--the RFE you quoted does . Also, since no source has been able to define what a "permanent" job is, I said that ALL contract jobs and self-employment can be shown to be permanent. Surprisingly, your interpretation is that NO H-1B job is "permanent!"

Now you have changed stand on these two after seeing one RFE example.
I did not change my stand on "permanent" job--no source has been able to define what that is. So, inserting that in the EVL in case of as RFE should not be a problem.

Now, you are saying new AC-21 job does not be bonafide.
I'm not saying that the "AC-21-job does not be bona fide." You *assumed* that, which is what you need to stop in your arguments. All I asked you is, where did you read that?
Do you even read what are you saying?

.

desi3933

07-10-2009, 12:54 PM

@desi3933:

That's the easiest part to prove in case of self-employment. You can either just mention that on the EVL, or register your company with the county, or open an LLC. In the latter cases, they ask the nature of your business, and you can copy-paste that from your labor petition.

Where did you read that requirement? Assuming, again?

A self-employed business is always real.

A business plan can be a 1-page document where you can cut-paste your labor job description. Costs and revenues should be easy to project. Also, in a self-employed business, there can be only one employee. You can also incorporate yourself.

Why do you need funding in a one-person company? Also, the revenues could be *projected*, and you could say that on your business plan and EVL...

http://www.uscis.gov/files/pressrelease/AC21Intrm122705.pdf

Question 8. Can an alien port to self-employment under INA §204(j)?
Answer: Yes, as long as the requirements are met. First, the key is whether the employment is in a "same or similar" occupational classification as the job for which the original I-140 petition was filed. Second, it may be appropriate to confirm that the new employer and the job offer are legitimate through an RFE to the adjustment applicant for relevant information about these issues. ......

what does this mean?
confirm that the new employer and the job offer are legitimate

legitimate means bonafide. Isn't it?
For both, new employer and new job offer.

sankap

07-10-2009, 12:57 PM

@desi3933:
Permanent means job that is for for a term of indefinite or unlimited duration.
http://www.uscis.gov/err/B3%20-%20Outstanding%20Professors%20and%20Researchers/Decisions_Issued_in_2004/MAR232004_01B3203.pdf
This definition is only for researchers/academics in the document. Question is, why can't self-employment be called a "permanent" job? After all, that job is of indefinite or unlimited duration.

AC-21 is not just for changing GC employer.
Yes, AC-21 i not just for changing the GC employer. The Yates memo was published in 2001 with a few amendments later.
Do not confuse existing H-1B job with future GC job.

H-1B is linked to LCA (Temp Job) (http://www.foreignlaborcert.doleta.gov/h-1b.cfm) Note: The link clearly says
If all H-1B jobs are not permanent, then your definition that a "permanent job is for a term of indefinite or unlimited duration" fails. Please decide what you want to say.

On the other hand, I-140 is linked to Permanent Labor Certification (http://www.foreignlaborcert.doleta.gov/perm.cfm) (aka GC labor)
"Permanent Labor Certification" does not mean the job has to be "permanent" (you're again *assuming*, no?) It could also mean LC for "permanent" residency!

sankap

07-10-2009, 01:07 PM

Thanks for quoting that. Now, how do you define what's legitimate? Meaning, why can't you show that your self-employment is "legitimate?"

http://www.uscis.gov/files/pressrelease/AC21Intrm122705.pdf

what does this mean?
confirm that the new employer and the job offer are legitimate

legitimate means bonafide. Isn't it?
For both, new employer and new job offer.

supreet

07-10-2009, 01:26 PM

Desi/Sankap,

I am not planning to open a company for this. If possible, I would rather work as an independent contractor on 1099. Now, after reading the last few posts, it looks like there are three things I need to worry about in case of a RFE -

1. Job should be bona fide (without going into the definition of the word).
My project is going to be with a large Bank through a big, wellknown consulting/outsourcing company. That should take care of the 'bonafide' part.

2. Should have similar/same job duties/responsibilities.
I am still waiting for the contract, however I can have my job duties/responsibilities listed out in my contract with the company. I am sure I can get a letter from the client too if it comes to that.

3. Job should be permanent - This is something I may not be able to prove. Since the project is short term, I am sure my contract will mention that. I am trying to convince the company to at least include "contract-to-hire" in the language of the contract. Since this project has potential of becoming long term, company is not averse to this idea.
Will having 'contract-to-hire' in the contract take care of this question (if a RFE comes).

Thanks!!

- S

sankap

07-10-2009, 02:00 PM

@supreet:
Desi/Sankap,

I am not planning to open a company for this. If possible, I would rather work as an independent contractor on 1099.
Please read IRS links I posted above re independent contractor vs. worker. Since you'll be filing your taxes as an independent contractor/sole proprietor on 1099, you'll be considered "self-employed." AC21 allows self-employment. You may not be formally opening a company, but you'll be self-employed.

Now, after reading the last few posts, it looks like there are three things I need to worry about in case of a RFE -

1. Job should be bona fide (without going into the definition of the word).
My project is going to be with a large Bank through a big, wellknown consulting/outsourcing company. That should take care of the 'bonafide' part.
All self-employment is legitimate--so no need to worry. Another option is o get the EVL from the staffing company in case of RFE. Your subcontract with the bank is immaterial.

2. Should have similar/same job duties/responsibilities.
I am still waiting for the contract, however I can have my job duties/responsibilities listed out in my contract with the company. I am sure I can get a letter from the client too if it comes to that.
Your self-employment under AC21 has to be same or similar job. If the contracting co can give you an EVL (in case of an RFE), good enough. If not, you can create one for your self-employed "Sole Proprietorship." I wouldn't bother the staffing company*now* for an EVL.

3. Job should be permanent - This is something I may not be able to prove. Since the project is short term, I am sure my contract will mention that. I am trying to convince the company to at least include "contract-to-hire" in the language of the contract. Since this project has potential of becoming long term, company is not averse to this idea.
Will having 'contract-to-hire' in the contract take care of this question (if a RFE comes).
All self-employment is "permanent." The staffing co may be able to write that on EVL. I wouldn't talk with the staffing co about that now: worry about that only in case of an RFE.

Thanks!!

- S

Ramba

07-10-2009, 02:11 PM

Lot of discussion on self employment w.r to AC21. Here is my thought. To use AC21 w.r to self employment one need not open a company. One can even do simple business model (sole proprietorship) in line with the definition of self employment as per IRS. IRS or Labor department is the one defines the “self-employment” not USCIS. Having said that, one should have a legitimate business and paper work and contract to prove.

Let’s see a simple example. A restaurant applied an I-140 for a cook. This cook wants to use AC21. He need not open a new restaurant and employs himself as a cook. A cook may not afford to open a business. He may not even require registering a business. All he needs is obey the sole proprietorship /independent contractor definition as per IRS and pay all the taxes and do the business as per rule. In this business model, if he lined up few long term contract with two or three big hotels to provide cooking service, or even provide cooked food from his home, and making similar income as per I-140, that will be enough to claim AC21. All he needs is legitimate self employment as per IRS rule, and good paperwork to claim that, in case of RFE.

Independent Contractor (Self-Employed) or Employee? (http://www.irs.gov/businesses/small/article/0,,id=99921,00.html)

desi3933

07-10-2009, 02:25 PM

@desi3933:
On the other hand, I-140 is linked to Permanent Labor Certification (http://www.foreignlaborcert.doleta.gov/perm.cfm) (aka GC labor)

"Permanent Labor Certification" does not mean the job has to be "permanent" (you're again *assuming*, no?) It could also mean LC for "permanent" residency!

Looks like you missed this on that link:

The job opportunity must be for a full time, permanent position.

There must be a bona fide job opening available to U.S. workers.

Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the foreign worker's qualifications. The employer must pay at least the prevailing wage for the occupation in the area of intended employment.

desi3933

07-10-2009, 02:31 PM

@desi3933:
H-1B is linked to LCA (Temp Job) (http://www.foreignlaborcert.doleta.gov/h-1b.cfm) Note: The link clearly says

If all H-1B jobs are not permanent, then your definition that a "permanent job is for a term of indefinite or unlimited duration" fails. Please decide what you want to say.

As per info on that page, it says clearly
"The H-1B program allows an employer to temporarily employ a foreign worker in the U.S. on a nonimmigrant basis in a specialty occupation or as a fashion model of distinguished merit and ability"

How can you say that any H-1B job is permanent? Now, you don't want to believe even the dol web page.

I have always maintained that Permanent Job is a full-time work that has no fixed end date. H1B petition always have fixed end date.

.

sankap

07-10-2009, 02:37 PM

@desi3933:
OMG! You didn't get it again! My point was that the PERM's title "Permanent Labor Certification," does not mean the job has to be "permanent". I' didn't refer to the details--only the title! Suggest you take courses on argumentation, fallacies, and logic!

Looks like you missed this on that link:

sankap

07-10-2009, 02:42 PM

I'm not saying that "H-1B job is permanent:" you're inferring again! I hold that *no* job in this country is "permanent" (legally speaking). My question to you was if no H1B is "permanent" (as you opine), then how can you prove that the AC20 job on H1B is or isn't "permanent?" So if that job is not "permanent," how do you convince/mention that in as RVE-EVL?

As per info on that page, it says clearly
"The H-1B program allows an employer to temporarily employ a foreign worker in the U.S. on a nonimmigrant basis in a specialty occupation or as a fashion model of distinguished merit and ability"

How can you say that any H-1B job is permanent? Now, you don't want to believe even the dol web page.

I have always maintained that Permanent Job is a full-time work that has no fixed end date. H1B petition always have fixed end date.

.

chi_shark

07-10-2009, 02:44 PM

i think it is very clear empirically that h1b is for a temp job and is a non-immigrant visa. it allows the employer to hire for a full time job too... whenever that intention is expressed, it should be expressed to DOL and USCIS in terms of PERM and I-140... thats that... once the h1 visa beneficiary is a beneficiary to I-140, then that person can apply for COS and avail AC21... so, i think it is clear that by itself h1 is temp. AC21 simply allows for h1 holder to extend H1 in case labor is clear and 140 is applied (labor expires in 6 months). further: ac21 allows job change after 485 app.

As per info on that page, it says clearly
"The H-1B program allows an employer to temporarily employ a foreign worker in the U.S. on a nonimmigrant basis in a specialty occupation or as a fashion model of distinguished merit and ability"

How can you say that any H-1B job is permanent? Now, you don't want to believe even the dol web page.

I have always maintained that Permanent Job is a full-time work that has no fixed end date. H1B petition always have fixed end date.

.

chi_shark

07-10-2009, 02:46 PM

you got to make your decision dude, however, in my case, i would opt for W2. 1099 is a temporary thing... thats my opinion... you did not ask me specifically to share this, but hey, this is a public forum... :-)

Desi/Sankap,

I am not planning to open a company for this. If possible, I would rather work as an independent contractor on 1099. Now, after reading the last few posts, it looks like there are three things I need to worry about in case of a RFE -

1. Job should be bona fide (without going into the definition of the word).
My project is going to be with a large Bank through a big, wellknown consulting/outsourcing company. That should take care of the 'bonafide' part.

2. Should have similar/same job duties/responsibilities.
I am still waiting for the contract, however I can have my job duties/responsibilities listed out in my contract with the company. I am sure I can get a letter from the client too if it comes to that.

3. Job should be permanent - This is something I may not be able to prove. Since the project is short term, I am sure my contract will mention that. I am trying to convince the company to at least include "contract-to-hire" in the language of the contract. Since this project has potential of becoming long term, company is not averse to this idea.
Will having 'contract-to-hire' in the contract take care of this question (if a RFE comes).

Thanks!!

- S

desi3933

07-10-2009, 02:49 PM

I'm not saying that "H-1B job is permanent:" you're inferring again! I hold that *no* job in this country is "permanent" (legally speaking).
......

Look at the I-140 application (Page 2, Part 6, Question 5)
http://www.uscis.gov/files/form/i-140.pdf

I wonder why uscis is asking "Is this a permanent position?", if according to you, "*no* job in this country is "permanent" (legally speaking)"

Did your attorney put No for this question for your I-140 app?

.

sankap

07-10-2009, 02:51 PM

Exactly! And thanks for clarifying that, which is what I've been trying to convey for the past 2 days! In your cook example, though, the cook can be self-employed with no income in a given period (week/month)--and he does not need to line up contracts. His business is "legitimate" and is in the same occupation as on his I140 petition. For an RFE-EVL, which he can write on his business "letterhead," all he needs to mention is his "projected" yearly income as salary.

Lot of discussion on self employment w.r to AC21. Here is my thought. To use AC21 w.r to self employment one need not open a company. One can even do simple business model (sole proprietorship) in line with the definition of self employment as per IRS. IRS or Labor department is the one defines the “self-employment” not USCIS. Having said that, one should have a legitimate business and paper work and contract to prove.

Let’s see a simple example. A restaurant applied an I-140 for a cook. This cook wants to use AC21. He need not open a new restaurant and employs himself as a cook. A cook may not afford to open a business. He may not even require registering a business. All he needs is obey the sole proprietorship /independent contractor definition as per IRS and pay all the taxes and do the business as per rule. In this business model, if he lined up few long term contract with two or three big hotels to provide cooking service, or even provide cooked food from his home, and making similar income as per I-140, that will be enough to claim AC21. All he needs is legitimate self employment as per IRS rule, and good paperwork to claim that, in case of RFE.

Independent Contractor (Self-Employed) or Employee? (http://www.irs.gov/businesses/small/article/0,,id=99921,00.html)

desi3933

07-10-2009, 02:55 PM

I
....
My question to you was if no H1B is "permanent" (as you opine), then how can you prove that the AC20 job on H1B is or isn't "permanent?" So if that job is not "permanent," how do you convince/mention that in as RVE-EVL?

Because Future GC job could be same job on H-1B, only difference being on H-1B your job has fixed end date (noted by I-94), and GC job has no fixed end date, hence permanent. It does not make that current job on H-1B permanent.

Temp Job and Permannet Job can have same job title and job duties. Just like contract job and full-time job can have same job title and job duties, but one is employee of the company and other one is not.

.

sankap

07-10-2009, 02:55 PM

Did you see I said "legally speaking?" If our attorneys answered Yes to the question you mentioned, then according to you they all lied, since "no H-1B job is permanent!"

Look at the I-140 application (Page 2, Part 6, Question 5)
http://www.uscis.gov/files/form/i-140.pdf

I wonder why uscis is asking "Is this a permanent position?", if according to you, "*no* job in this country is "permanent" (legally speaking)"

Did your attorney put No for this question for your I-140 app?

.

desi3933

07-10-2009, 03:04 PM

Did you see I said "legally speaking?" If our attorneys answered Yes to the question you mentioned, then according to you they all lied, since "no H-1B job is permanent!"

I-140 is for future GC and hence, must be full time and permanent.

I-140 is not for current H-1B job.

You are mixing two things.

sankap

07-10-2009, 03:05 PM

I agree--make your own decision for your peace of mind. Under W2, you're an employee and your employer does the taxes. On 1099, you're self-employed and you do the taxes, and also deduct business expenses. However, being on W2 does *not* mean that you've a job for unlimited period of time. A lot of recruiters for contract jobs (e.g., a 3-month contract) give you the option of joining under W2 or 1099.--e.g., $70/hr on 1099 or $60/hr or W2. Being on W2 should *not* be construed as being on a "permanent" job.

At the end of the day, it's all a question of your peace of mind. You can take this 6-month contract on W2 and take comfort in your (wrong) thinking that you're on a "permanent" job, or you can take that contract on 1099 and (wrongly) worry that you're on a "temporary thing."

you got to make your decision dude, however, in my case, i would opt for W2. 1099 is a temporary thing... thats my opinion... you did not ask me specifically to share this, but hey, this is a public forum... :-)

sankap

07-10-2009, 03:14 PM

I-140 is for future job, and the petition says that the original employer has *intent* to hire the petitioner on FT/"perm" job. Now, let's say the original employer withdraws the petition after 180 days of filing I-485 and approved I-140 and lets you go. That's where AC21 comes to rescue, and you can become "self-employed" rather than "unemployed." Question is, why can't self-employment in same/similar occupation as your I-140 petition be considered to satisfy I-140 requirement? (Fortunately, yes it can be, per Yates memo.) Another situation: If you continue working with the same employer on H-1B until you get your GC, and leave him the next day of getting GC, and then plan to take a long holiday (not working). Would your GC be canceled because you don't have a FT/"perm" job?

I-140 is for future GC and hence, must be full time and permanent.

I-140 is not for current H-1B job.

You are mixing two things.

sankap

07-10-2009, 03:20 PM

Agreed that H-1B has a fixed date. But from the employer standpoint, you're their "full-time, permanent" employee on H-1B, right? Because Future GC job could be same job on H-1B, only difference being on H-1B your job has fixed end date (noted by I-94), and GC job has no fixed end date, hence permanent. It does not make that current job on H-1B permanent.

Temp Job and Permannet Job can have same job title and job duties. Just like contract job and full-time job can have same job title and job duties, but one is employee of the company and other one is not.

.

desi3933

07-10-2009, 03:32 PM

Agreed that H-1B has a fixed date. But from the employer standpoint, you're their "full-time, permanent" employee on H-1B, right?

Now you have come down from legal standpoint to employer standpoint! :D

The answer to your question is No.
Employer sponsors GC so that employee that is temporarily employed on H-1B can become permanently employed on GC job.

Again, you are mixing H-1B job with GC job.

Let me ask that question again (because you got confused last time)
Look at the I-140 application for GC (Page 2, Part 6, Question 5)
http://www.uscis.gov/files/form/i-140.pdf

I wonder why uscis is asking "Is this a permanent position?", if according to you, "*no* job in this country is "permanent" (legally speaking)"

Did your attorney put No for this question for your I-140 app?

You still believe that no job is permanent. If so, all I can say, more power to you.

Have a good day!

_______________________
US citizen of Indian origin

Ramba

07-10-2009, 03:36 PM

desi3933

07-10-2009, 03:37 PM

....
That's where AC21 comes to rescue, and you can become "self-employed" rather than "unemployed." Question is, why can't self-employment in same/similar occupation as your I-140 petition be considered to satisfy I-140 requirement?....

Yes, one can be self-employed for AC-21 job, as long as conditions mentioned in the same memo are fulfilled

"Question 8. Can an alien port to self-employment under INA §204(j)?
Answer: Yes, as long as the requirements are met. First, the key is whether the employment is in a "same or similar" occupational classification as the job for which the original I-140 petition was filed. Second, it may be appropriate to confirm that the new employer and the job offer are legitimate through an RFE to the adjustment applicant for relevant information about these issues. ...... "

chanduv23

07-10-2009, 03:41 PM

Folks, here is what I am able to gather by self employment

(1) One can be self employed
(2) 1099 or w2 - kinda tricky - most people I talked to do w2 and any profits they get after they take their salary are bonuses
(3) The job has to be legitimate - in the same or similar category - you must be doing duties that are similar in nature to your 140 petition
(4) What is meant by legitimate is - you must simply not be doing "nothing" - there must be income and you must be doing your duties.

Correct me if I am wrong

desi3933

07-10-2009, 03:52 PM

sankap

07-10-2009, 04:43 PM

No, I've not "come down from legal standpoint to employer standpoint!" Your assumptions/inferences are based on generalizations. All I meant was there are many perspectives/interpretations for "permanent." Yes, if you're an H1B on a FT job, there are high chances are that the employer thinks that's a "FT and permanent" position--even though GC is filed for future job. Why don't you ask your employer that question when you were/are on H1B, pre/post-I-140 petition? That is, were/are you working there as a temp or "perm?" on H-1B? And, yes, *legally* speaking, if an employment is at-will, it can't be "permanent." That is, if an employer fires you (for performance or downturn) , you just can't sue him on the ground that you were promised a "permanent" job, can you?

Now you have come down from legal standpoint to employer standpoint! :D

The answer to your question is No.
Employer sponsors GC so that employee that is temporarily employed on H-1B can become permanently employed on GC job.

Again, you are mixing H-1B job with GC job.

Let me ask that question again (because you got confused last time)
Look at the I-140 application for GC (Page 2, Part 6, Question 5)
http://www.uscis.gov/files/form/i-140.pdf

I wonder why uscis is asking "Is this a permanent position?", if according to you, "*no* job in this country is "permanent" (legally speaking)"

Did your attorney put No for this question for your I-140 app?

You still believe that no job is permanent. If so, all I can say, more power to you.

Have a good day!

_______________________
US citizen of Indian origin

desi3933

07-10-2009, 04:54 PM

And, yes, *legally* speaking, if an employment is at-will, it can't be "permanent." That is, if an employer fires you (for performance or downturn) , you just can't sue him on the ground that you were promised a "permanent" job, can you?

You are wrong, again!. ;)

I said this before, Permanent job does not mean "forever", it simple means it has no fixed end date (i.e. indefinite duration). That said, most of the Permanent Jobs are, in fact, at will jobs.

.

sankap

07-10-2009, 04:58 PM

@chanduv23:
Folks, here is what I am able to gather by self employment

(1) One can be self employed
(2) 1099 or w2 - kinda tricky - most people I talked to do w2 and any profits they get after they take their salary are bonuses
Self-employment is possible only on 1099. If you're on W2, you're *not* self-employed. Pls see IRS guidelines (links above)

(3) The job has to be legitimate - in the same or similar category - you must be doing duties that are similar in nature to your 140 petition
(4) What is meant by legitimate is - you must simply not be doing "nothing" - there must be income and you must be doing your duties.
That's *your* interpretation of "legitimate." If you're self-employed and looking for contracts, your business is "legitimate." Since there's no clear definition of that from USCIS, DOl, IRS, we can *assume* your self-employment in similar occupation is legitimate. If you've a business, you can't guarantee biweekly/monthly cash flow--again, no guidelines from USCIS on that.

Correct me if I am wrong

sankap

07-10-2009, 05:07 PM

So, we're back to the semantics. We need USCIS/DOL definitions of "permanent" and "legitimate"--not the definition just for educators/tenured teaching positions, as desi3933 gave. If we don't have the definitions, we can/can't assume anything/everything. Therefore, self-employment in same/similar occupation, with a *projected* cash flow, should be classified as "FT, permanent."

You are wrong, again!. ;)

I said this before, Permanent job does not mean "forever", it simple means it has no fixed end date (i.e. indefinite duration). That said, most of the Permanent Jobs are, in fact, at will jobs.

.

chanduv23

07-10-2009, 05:45 PM

@chanduv23:

Ok, i am not challenging you or your interpretations. I am looking into all options.

sankap

07-10-2009, 06:27 PM

Chandu,

I've no problems you or anybody else challenging me--we're all (mostly) scientists/engineers here, so making assumptions based on observations, and challenging them, should be the first step toward creating a hypothesis (http://en.wikipedia.org/wiki/Scientific_method). But science seeks evidence for those assumptions. Staying clear of traps like fallacies (http://en.wikipedia.org/wiki/Fallacy) should help.

Ok, i am not challenging you or your interpretations. I am looking into all options.

sankap

07-10-2009, 09:52 PM

@Ramba:
Nice assumptions...but we need evidence. Do any USCIS documents say they would need proof of a *running* income? (After all, you don't have paystubs for a future job in same/similar occupation.) Since GC is for *future* job, why can't self-employment in same/similar occupation, under AC21 and with *projected* revenues, be enough? Do they ask for paystubs and proof of long-term commitments/contracts in EVL-RFE?

Re wages, here's Yates memo verbiage:

Question 5. Should service centers or district officers use a difference in the wage offered on the approved labor certification and initial I-140, and the new employment as basis for denial in adjustment portability cases?
Answer: No. As noted above the relevant inquiry is if the new position is the same or similar occupational classification to the alien’s I-140 employment. A difference in the wage offered on the approved labor certification, initial I-140 and the new employment cannot be used as a basis of a denial. However, a substantial discrepancy between the previous and the new wage may be taken into consideration as a factor in determining if the new employment is “same or similar.”

Pls note that with current recession/depression, the "prevailing wages" for same/similar occupations have gone down--drastically in some cases (esp. IT). Also, you could open/register your LLC (by spending $400) for your self-employment to sound more "legitimate"--but that's certainly not a requirement.

USCIS may not buy if no income shown thro the bussiness. One may have a simple bussiness model. However, they should be in a position to show documentary evidence that they are making similar money as per 140, and importantly they are doing same kind of work when self employed, and they have a long term commitment/contract for their bussiness. Then only they may belief that you are doing legitimate bussiness thro self employment. Just writing EVL in a letter head will not serve the purpose.

Ramba

07-11-2009, 11:39 PM

@Ramba:
Nice assumptions...but we need evidence. Do any USCIS documents say they would need proof of a *running* income? (After all, you don't have paystubs for a future job in same/similar occupation.) Since GC is for *future* job, why can't self-employment in same/similar occupation, under AC21 and with *projected* revenues, be enough? Do they ask for paystubs and proof of long-term commitments/contracts in EVL-RFE?

Pls note that with current recession/depression, the "prevailing wages" for same/similar occupations have gone down--drastically in some cases (esp. IT). Also, you could open/register your LLC (by spending $400) for your self-employment to sound more "legitimate"--but that's certainly not a requirement.

Your argument is so nice. If you get a nice, immigrant friendly, kind hearted adjudicator for your 485 application, he may just approve even if you show the self employment will be in future (for future job requirement for GC), and he may agree for your "projected income". I think you have not read recent horror stories in H1B. They are just like that denying majority of H1B. If the petitioner does not provide commitment/contract from end client for the entire duration of H1B period, H1B approval impossible. H1B is a temporay job; just think how much they will scrutinize for GC. Those golden period are long gone. This is enforcement period as US unemployment rate is in double digit.

AC21 memo is a non-binding memo. Tommorow they may release another memo or regulation that repeal the self employment in AC21 cases.

browncow

07-12-2009, 05:40 PM

AC21 memo is a non-binding memo. Tommorow they may release another memo or regulation that repeal the self employment in AC21 cases.

absolutely no reasoning or logic, just pure pessimism.

sankap

07-12-2009, 06:27 PM

...he may just approve even if you show the self employment will be in future (for future job requirement for GC), and he may agree for your "projected income".
Suppose you're on the 3rd month of a 3-month contract on self-employment in same/similar occupation (a "permanent" job). Now, can't you say your "projected" annual income on self-employment, esp. if the project is *likely* to be extended for an unknown period? Another scenario: In a month you're *expected* to start working on a three-month project (@$60/hr). Can't you calculate your annual income ("projected," of course)?

I think you have not read recent horror stories in H1B. They are just like that denying majority of H1B.
Statistically speaking, there is always a high probability of H1B getting denied than for GC. Also, H-1B fraud (and now L1, EB1-GC "frauds"), esp. by desi IT bodyshoppers, is more prevalent (as noted by BusinessWeek) than GC fraud. In any case, just because a large number of H-B petitions are getting rejected, on *genuine* grounds, you can't assume the same proportion of GCs getting rejected.

If the petitioner does not provide commitment/contract from end client for the entire duration of H1B period, H1B approval impossible. H1B is a temporary job; just think how much they will scrutinize for GC.
H1B is a temporary job from USCIS perspective. Most of the time the employer is hiring an H-1B to fill a FT, "permanent" position. Why would that employer (e.g., an R&D or oil company) give the commitment for, say, just 3 (initial) years of contract? Most of the time, the employer has *intent* to keep the H-1B on that same job after GC.

Those golden period are long gone. This is enforcement period as US unemployment rate is in double digit.
Current recession/depression doesn't mean the USCIS/DOL flout their rules/laws (e.g., AC21)--it just means they need to follow the rules more strictly and reject any potential fraudulent cases. This enforcement is only going to increase as it takes more time for the economy to bottom out. Law-abiding H-1B and GC petitioners need not fear that.

AC21 memo is a non-binding memo. Tomorrow they may release another memo or regulation that repeal the self employment in AC21 cases.
If AC21 memo is non-binding, which immigartion law is binding? We can go with only current rules/laws; the rest is speculation.

desi3933

07-12-2009, 06:43 PM

.....

If AC21 memo is non-binding, which immigartion law is binding? We can go with only current rules/laws; the rest is speculation.

USCIS memoranda articulate internal guidelines for agency personnel; they do not establish judicially enforceable standards.

http://www.uscis.gov/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2008/Nov032008_17D7101.pdf (http://www.uscis.gov/err/D7%20-%20Intracompany%20Transferees%20%28L-1A%20and%20L-1B%29/Decisions_Issued_in_2008/Nov032008_17D7101.pdf)

CIS memoranda articulate internal guidelines for agency personnel; they do not establish judicially enforceable standards. Agency interpretations that are not arrived at through precedent decision or notice and comment rule making such as those in opinion letters, policy statements, agency manuals, and lack the force of law
.

Ramba

07-12-2009, 11:59 PM

Suppose you're on the 3rd month of a 3-month contract on self-employment in same/similar occupation (a "permanent" job). Now, can't you say your "projected" annual income on self-employment, esp. if the project is *likely* to be extended for an unknown period? Another scenario: In a month you're *expected* to start working on a three-month project (@$60/hr). Can't you calculate your annual income ("projected," of course)?

Statistically speaking, there is always a high probability of H1B getting denied than for GC. Also, H-1B fraud (and now L1, EB1-GC "frauds"), esp. by desi IT bodyshoppers, is more prevalent (as noted by BusinessWeek) than GC fraud. In any case, just because a large number of H-B petitions are getting rejected, on *genuine* grounds, you can't assume the same proportion of GCs getting rejected.

H1B is a temporary job from USCIS perspective. Most of the time the employer is hiring an H-1B to fill a FT, "permanent" position. Why would that employer (e.g., an R&D or oil company) give the commitment for, say, just 3 (initial) years of contract? Most of the time, the employer has *intent* to keep the H-1B on that same job after GC.

Current recession/depression doesn't mean the USCIS/DOL flout their rules/laws (e.g., AC21)--it just means they need to follow the rules more strictly and reject any potential fraudulent cases. This enforcement is only going to increase as it takes more time for the economy to bottom out. Law-abiding H-1B and GC petitioners need not fear that.

If AC21 memo is non-binding, which immigartion law is binding? We can go with only current rules/laws; the rest is speculation.
-Learn about what is law, rules, regulation; which is binding which is not; then post here.
http://immigration-information.com/forums/i-140-job-portability/4396-cis-memo-on-i-140-job-portability.html
http://www.immitips.com/?p=1116

Very good arguments. If they issue any RFE for your self-employment (if you are in it) argue with them with these points; and good luck