GC Employment in Startups and Equity Eligibility

[newbie]

Hello gurus - I am currently working for a startup and the founders are willing to offer me some equity/ESOPs. Albeit the equity being very minimal, the immigration lawyer is adamant that this would impact the GC. The lawyer's reasoning is that if a GC applicant has an equity in a company, USCIS could potentially consider the job search portion of the GC biased.

Please let me know if you or your colleagues have encountered this situation and how you/they resolved it.

[qesehmk]

Hello gurus - I am currently working for a startup and the founders are willing to offer me some equity/ESOPs. Albeit the equity being very minimal, the immigration lawyer is adamant that this would impact the GC. The lawyer's reasoning is that if a GC applicant has an equity in a company, USCIS could potentially consider the job search portion of the GC biased.

Please let me know if you or your colleagues have encountered this situation and how you/they resolved it.

The lawyer's argument doesn't make sense to me. If the company wants to pay you equity that's a much bigger indication that they want YOU than anybody else.

Early stage equity could turn out very substantial future payout and some founders are complete jerks in avoiding paying it out. The lawyer could very well be helping founders.

[1312011_eb2I]

Are you sure you are talking to a competent lawyer? I myself work for one of the tech company and they very much provide ESOP. Infact all the tech. companies do provide because that is one of their strength to attract the talent.
I really want to know exact reason given by your lawyer.

[mmax123]

Hello gurus - I am currently working for a startup and the founders are willing to offer me some equity/ESOPs. Albeit the equity being very minimal, the immigration lawyer is adamant that this would impact the GC. The lawyer's reasoning is that if a GC applicant has an equity in a company, USCIS could potentially consider the job search portion of the GC biased.

Please let me know if you or your colleagues have encountered this situation and how you/they resolved it.

This does not make sense. I and many of my friends have worked in startups, small & big tech companies over the last decade. Equity (ESOP, RSUs etc) are almost always part of the compensation in the Bay area. In fact, more than half of my current compensation is in RSUs. This is no way affects GC processing.

That being said, you should consult a lawyer (Immigration or otherwise) to get their opinion on your specific instance. The startup's lawyer is not your lawyer. They are looking out for the startup/founders.


EDIT:
This is not what you asked, but you should also properly evaluate the equity being offered. It is pretty complicated. A google search of "evaluate startup equity offer" should get you started with a few pointers.

[srimurthy]

From newbie statement " The lawyer's reasoning is that if a GC applicant has an equity in a company, USCIS could potentially consider the job search portion of the GC biased."

I guess you may clarify that the Job search should not have a conflict with the equity. As the search is done first, you are offered a job and then joining the company. After you join you are getting the EPOS.
And that EPOS can be for anyone taking that job offer.

To my understanding it could be complicated if you are one of the owners or partners in a firms and then that firm is filing your GC application then may be there is chance to ponder or think of bias.

[gammaray]

This does not make sense. I and many of my friends have worked in startups, small & big tech companies over the last decade. Equity (ESOP, RSUs etc) are almost always part of the compensation in the Bay area. In fact, more than half of my current compensation is in RSUs. This is no way affects GC processing.

That being said, you should consult a lawyer (Immigration or otherwise) to get their opinion on your specific instance. The startup's lawyer is not your lawyer. They are looking out for the startup/founders.


EDIT:
This is not what you asked, but you should also properly evaluate the equity being offered. It is pretty complicated. A google search of "evaluate startup equity offer" should get you started with a few pointers.

I agree, it likely has to do with the details of the equity being offered. I can see the lawyer's point that depending on the conditions of the equity it could be a conflict of interest but if the equity is ESOP/RSU and part of the PERM job description that is normally offered for the position to everyone, then it wouldn't be biased towards the GC candidate. DOL while reviewing PERM, I think, looks for positions specially created for GC candidates vs a position that a company has advertised for and recruited in the past but is now unable to fill with a US citizen. But maybe for startups it's difficult since they don't have a long (or any) recruitment history.

[Turbulent_Dragonfly]

I guess you may clarify that the Job search should not have a conflict with the equity. As the search is done first, you are offered a job and then joining the company. After you join you are getting the EPOS.
And that EPOS can be for anyone taking that job offer.

To my understanding it could be complicated if you are one of the owners or partners in a firms and then that firm is filing your GC application then may be there is chance to ponder or think of bias.

Equity should not ever be an issue. I have equity and also a limited partner in my company (K1) and verified with my attorney that both of these won't affect GC processing before they did the paperwork. H1Bs can start a C-Corp or LLC but not an S-Corp which cannot have non-USCs as shareholders. Even if a H1B starts or runs a C or LLC, they can't actively work for or run it and will need to have someone else do that and continue to work for their H1B sponsor.

[qesehmk]

Even if a H1B starts or runs a C or LLC, they can't actively work for or run it and will need to have someone else do that and continue to work for their H1B sponsor.

My understanding is that anybody in any legal status can work as OWNER in your own business. You just can't be an employee of the business i.e. can't draw wages or have benefits etc. But you can be an active owner.