S-Corpの設立

Detailed explanation of S-Corpの設立 based on official information from USCIS・国務省. Insurance Management

Published: January 12, 2026

S-Corporations and U.S. Work Visas: A Guide for Foreign Nationals

1. Overview

An S-Corporation (S-Corp) is a special tax designation granted by the Internal Revenue Service (IRS) to eligible domestic corporations and LLCs that choose to pass corporate income, losses, deductions, and credits through to their shareholders for federal tax purposes. This structure avoids the double taxation typically associated with C-Corporations. In the context of U.S. immigration, an S-Corp can be the sponsoring entity for certain work visas, most notably the H-1B visa for specialty occupations and the L-1 visa for intracompany transferees. The importance lies in understanding that while the S-Corp defines the business's tax structure, it does not inherently confer immigration benefits; it must still comply with all U.S. Citizenship and Immigration Services (USCIS) requirements to sponsor foreign workers.

2. Applicable Objects & Scenarios

This topic applies to:

  • Foreign national entrepreneurs or investors who have established or are considering establishing a U.S. business with an S-Corp election and wish to work in that business.
  • Existing S-Corp businesses in the U.S. seeking to hire foreign talent in specialty occupations.
  • Foreign employees being transferred to a U.S. office, subsidiary, or affiliate of a foreign company that is structured as an S-Corp.
  • Scenarios include: A founder needing an H-1B visa to work in their own S-Corp, an S-Corp sponsoring a foreign professional for a key role, or a multinational company using the L-1 visa to transfer a manager or executive to its U.S.-based S-Corp.

3. Core Conclusions

  • Tax vs. Immigration: Electing S-Corp status is a tax decision with the IRS, not an immigration status. It does not simplify or change visa application requirements.
  • Sponsorship Eligibility: An S-Corp can sponsor work visas, but it must prove it is a viable, operating entity with the financial ability to pay the required wage to the foreign worker.
  • Owner-Employee Complexity: Founders/owners seeking a visa for their own S-Corp face heightened scrutiny. USCIS requires clear evidence of a valid employer-employee relationship, where the company has the right to control the work of the employee-owner.
  • Compliance is Dual: An S-Corp sponsoring a foreign worker must maintain compliance with both IRS regulations for its S-Corp status and USCIS regulations for the visa category.

4. Procedures & Steps

Step 1: Preparation

  • Ensure S-Corp Eligibility & Election: Confirm the business meets IRS criteria (e.g., ≤100 shareholders, all are U.S. citizens/residents, one class of stock) and has filed Form 2553 with the IRS.
  • Determine the Appropriate Visa Category: Assess whether the H-1B (specialty occupation), L-1 (intracompany transfer), O-1 (extraordinary ability), or another visa is the correct fit.
  • Gather Business Evidence: Compile documents proving the S-Corp is a legitimate, operating business. This includes Articles of Incorporation/Organization, bylaws/operating agreements, IRS acceptance of S-Corp election, business licenses, financial statements, bank records, office lease, payroll records, and evidence of other employees.
  • Define the Role & Wage: Draft a detailed job description that meets visa-specific requirements (e.g., for H-1B, proving it's a "specialty occupation"). Determine the prevailing wage for the role in the geographic area using official sources like the Foreign Labor Certification Data Center.

Step 2: Application & Submission

  • Labor Condition Application (LCA) - For H-1B: Before filing the H-1B petition, the S-Corp must file an LCA (Form ETA 9035/9035E) with the Department of Labor (DOL), attesting to wage and working condition obligations. This is not required for L-1 visas.
  • File the Visa Petition with USCIS: Prepare and submit the appropriate form package to USCIS.
    • For H-1B: File Form I-129, Petition for a Nonimmigrant Worker, along with the certified LCA, supporting business evidence, and beneficiary qualifications.
    • For L-1: File Form I-129 with evidence of the qualifying relationship between the foreign and U.S. entities (both must be legally viable), the beneficiary's qualifying employment abroad for at least one year, and the proposed executive/managerial or specialized knowledge role in the U.S.
  • Pay Required Fees: Include all applicable filing fees. Fee amounts vary by visa type and company size. Please verify with official sources.

Step 3: Review & Confirmation

  • USCIS Adjudication: USCIS will review the petition. They may issue a Request for Evidence (RFE) seeking more information, particularly regarding the employer's ability to pay and the legitimacy of the employer-employee relationship in owner-sponsored cases.
  • Petition Approval: If approved, USCIS will issue a Form I-797 Notice of Action. For beneficiaries outside the U.S., this is used to apply for a visa stamp at a U.S. Embassy/Consulate.
  • Maintain Status: Once the employee enters the U.S., the S-Corp must comply with all visa conditions, including filing amended or new petitions for any material changes and extending status before expiration.

5. Frequently Asked Questions (FAQ)

Q1: Can I, as a founder, sponsor myself for an H-1B visa through my own S-Corp? A: Yes, but it is complex. You must demonstrate that a valid "employer-employee relationship" exists, meaning the S-Corp (the employer) has the right to control your work. This often requires a board of directors or shareholders with independent control to hire, fire, pay, and supervise you. Your ownership alone does not disqualify you, but the petition must be meticulously documented.

Q2: Are there any visa categories an S-Corp cannot sponsor? A: Generally, an S-Corp can sponsor any employment-based visa for which it meets the requirements. However, certain investor visas like the E-2 Treaty Investor visa require the investment capital to be "at risk." The pass-through nature of an S-Corp does not inherently conflict with this, but the structure of the investment must be carefully evaluated.

Q3: Does the S-Corp's shareholder limit affect visa sponsorship? A: No. The IRS 100-shareholder limit for S-Corp eligibility is unrelated to USCIS's requirements for visa sponsorship. USCIS is concerned with the company's financial health and legitimacy, not its number of shareholders, as long as the S-Corp status remains valid with the IRS.

Q4: What is the biggest challenge for an S-Corp sponsoring a visa? A: For small or new S-Corps, the most common challenge is proving the "ability to pay" the required wage from the time the petition is filed. USCIS will request financial documents (bank statements, profit/loss statements, tax returns) to ensure the company has the revenue or assets to afford the employee's salary.

Q5: Can an S-Corp sponsor a green card (permanent residence) for an employee? A: Yes. The process typically starts with the PERM Labor Certification filed with the DOL, followed by an immigrant petition (Form I-140) with USCIS. The S-Corp must act as the sponsoring employer throughout this multi-year process.

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 legal and tax professionals.
  • S-Corp Compliance: Failure to maintain S-Corp requirements (e.g., issuing dividends proportional to ownership) can lead to termination of the tax election by the IRS, potentially creating unforeseen tax liabilities.
  • USCIS Scrutiny: Small, owner-sponsored petitions are high-risk for Requests for Evidence (RFE) and denials if the employer-employee relationship is not convincingly documented.
  • Audit Risk: S-Corps sponsoring H-1B workers are subject to DOL audits of their LCA compliance. Maintaining public access files is mandatory.
  • Material Changes: Any significant change in the beneficiary's job location, salary, or job duties may require an amended or new visa petition.

7. References & Sources

8. Related Topics

  • H-1B Visa
  • L-1 Visa
  • Employer-Employee Relationship for Visa Purposes
  • PERM Labor Certification
  • Form I-9 Employment Eligibility Verification
  • Differences Between LLC, S-Corp, and C-Corp
← Back to Knowledge Base
Get StartedGet Quote