S-Corpの設立

Detailed explanation of S-Corpの設立 based on official information from USCIS・国務省. Social Insurance (Five Insurances & One Fund)

Published: January 12, 2026

S-Corporations and Green Card Sponsorship: A Comprehensive Guide

1. Overview

An S-Corporation (S-Corp) is a special tax designation elected by eligible domestic corporations and LLCs under Subchapter S of the Internal Revenue Code. While primarily a tax status, an S-Corp's structure can play a significant role in employment-based green card sponsorship. For foreign nationals seeking permanent residency (a green card) through employment, the sponsoring employer's business structure—including whether it is an S-Corp—can impact the sponsorship process. The importance lies in understanding how the S-Corp's specific requirements, such as shareholder restrictions, intersect with U.S. Citizenship and Immigration Services (USCIS) regulations for employer sponsorship.

2. Applicable Objects & Scenarios

This topic applies to:

  • Foreign National Employees: Individuals on temporary work visas (like H-1B, L-1, O-1) employed by an S-Corp who seek permanent residency.
  • S-Corp Business Owners/Sponsors: U.S. employers structured as S-Corporations who wish to sponsor a foreign employee for a green card.
  • Immigration Attorneys & HR Professionals: Advisors navigating the intersection of corporate law and immigration compliance.

An S-Corp may need to engage in the green card sponsorship process when it intends to hire or retain a foreign national employee for a permanent position. The sponsorship is typically initiated through the PERM Labor Certification process or via a petition that requires demonstrating the employer's ability to pay the offered wage.

3. Core Conclusions

  • An S-Corp is eligible to sponsor employees for green cards, provided it meets all USCIS requirements for petitioners.
  • The S-Corp structure itself does not prohibit sponsorship, but its operational and ownership rules must be compatible with immigration laws.
  • Key immigration considerations include proving the employer's financial ability to pay the proffered wage and ensuring the corporate structure does not violate rules concerning employer-employee relationships.
  • The sponsorship process for an S-Corp follows the same core steps as for other entities (C-Corp, LLC), but requires careful attention to documentation that reflects its unique tax and ownership structure.

4. Procedures & Steps

Step 1: Preparation

  • Corporate Compliance: Ensure the S-Corp is in good standing with state authorities and the IRS. All corporate formalities (e.g., shareholder agreements, annual meetings, filings) must be observed.
  • Job Analysis: Define the permanent position for the foreign national. Conduct a prevailing wage determination with the Department of Labor (DOL) to establish the minimum salary required for the role.
  • Financial Documentation: Gather financial evidence (e.g., tax returns, audited financial statements, annual reports) to demonstrate the S-Corp's ability to pay the offered wage from the date the green card process is filed. This is a critical USCIS requirement.
  • Legal Counsel: Retain an experienced immigration attorney to navigate the complex interplay between S-Corp regulations and immigration law.

Step 2: Application & Submission

  • PERM Labor Certification (if required): File ETA Form 9089 with the DOL after completing mandatory recruitment steps to test the U.S. labor market. This step is required for most employment-based categories (EB-2, EB-3).
  • Immigrant Petition for Alien Worker (Form I-140): Upon PERM approval (or for categories that don't require PERM), the S-Corp submits Form I-140 to USCIS. This petition must include extensive evidence about the company and the beneficiary's qualifications, along with proof of ability to pay.
  • Supporting Evidence: Submit corporate documents (articles of incorporation, bylaws, shareholder list), federal tax returns (Form 1120S), and financial statements to establish the company's legitimacy and financial health.

Step 3: Review & Confirmation

  • USCIS Adjudication: USCIS reviews the I-140 petition. Requests for Evidence (RFE) may be issued, often focusing on ability to pay or the specifics of the employer-employee relationship within the S-Corp structure.
  • Priority Date: Upon I-140 approval, the foreign national receives a "priority date." They must wait for this date to become "current" according to the Visa Bulletin before proceeding, unless they are in a category with no backlog.
  • Adjustment of Status or Consular Processing: The final step is for the foreign national to either file Form I-485 for Adjustment of Status within the U.S. or apply for an immigrant visa at a U.S. consulate abroad.

5. Frequently Asked Questions (FAQ)

Q1: Can an S-Corp owned by a green card holder sponsor a relative for an employment-based green card? A: Yes, ownership by a lawful permanent resident does not prevent an S-Corp from sponsoring an employee. The key factors are the company's ability to pay the wage and compliance with all sponsorship requirements, independent of the owner's immigration status.

Q2: Are there any restrictions on the foreign national employee owning shares in the sponsoring S-Corp? A: This is a complex area. An S-Corp may generally have non-resident alien shareholders under certain conditions, but for immigration purposes, a significant ownership stake by the beneficiary could challenge the validity of the employer-employee relationship required for sponsorship. Consult with both immigration and corporate counsel.

Q3: How does an S-Corp prove "ability to pay" the offered wage? A: USCIS typically reviews the S-Corp's net income (from Line 21 of Form 1120S) and the beneficiary's compensation (from Form W-2). The company's net income, plus any salaries paid to owners that are not deductible, must meet or exceed the proffered wage for the relevant period.

Q4: Does the S-Corp election affect the type of employment-based green card category we can use? A: No, the S-Corp status does not limit the category (EB-1, EB-2, EB-3). The choice of category depends on the employee's qualifications and the job requirements.

Q5: What are the main immigration pitfalls for an S-Corp sponsor? A: The primary risks include failing to maintain clear separation between corporate and personal finances (piercing the corporate veil), inability to document sufficient financial strength, and creating a ownership structure that undermines the bona fide employer-employee relationship.

6. Risks & Compliance

  • Disclaimer: This article is for informational purposes only and does not constitute legal, tax, or immigration advice. You must consult with qualified professionals.
  • USCIS Scrutiny: S-Corps, especially smaller ones, may face heightened scrutiny regarding their financial ability to pay the proffered wage. Meticulous and consistent financial documentation is essential.
  • Corporate Formalities: Failure to adhere to S-Corp governance rules (e.g., holding annual meetings, keeping separate bank accounts) can jeopardize both the corporate liability protection and the credibility of the immigration petition.
  • Changing Laws: Immigration and tax laws are subject to change. The information here is based on current laws and policies, which may be updated.

7. References & Sources

8. Related Topics

  • PERM Labor Certification
  • Form I-140, Immigrant Petition for Alien Worker
  • Employment-Based Immigration: Second Preference (EB-2)
  • Employment-Based Immigration: Third Preference (EB-3)
  • H-1B Visa Specialty Occupations
  • Maintaining Nonimmigrant Status During Green Card Process
  • Difference Between S-Corp and C-Corp for Business Owners
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