So Your Startup Wants to File for an H-1B Visa?

More and more, startups and growing companies run into a situation where they want to bring a foreign worker on board. To do this, they’ll need to file for an H-1B visa. This post addresses (1) the minimum requirements for filing an H-1B visa and (2) the basic steps for filing an H-1B. Finally, in a forthcoming post, we will address a related question that founders often have: (3) If and how a startup CEO or co-founder can receive an H-1B from his/her new venture. The requirements for applying for an H-1B are outlined on the USCIS website, and summarized below.

What is an H-1B Visa?

An H-1B visa is the most common way for employers to sponsor professional workers in the U.S. In order to qualify for this sponsorship, the employee must hold a position that requires at least a bachelor’s degree or equivalent experience in that field. Once obtained, an H-1B visa allows its bearer to stay and work in the U.S. legally for up to three years. After those three years, the visa can be renewed for up to six total years.

Minimum Requirements When Filing for an H1B Visa

  • There must be an employer-employee relationship with the petitioning U.S. employer. In general, a valid employer-employee relationship is determined by whether the U.S. employer may hire, pay, fire, supervise or otherwise control the work of the H-1B worker. In some cases, the sole or majority owner of the petitioning company or organization may be able to establish a valid employer-employee relationship, if the facts show that the petitioning entity has the right to control the beneficiary’s employment. More on what this means for a startup founder below.
  • Proof that the position is a specialty occupation related to your field of study, at minimum requiring a bachelor’s degree or equivalent. The USCIS summarizes different specialty occupations on their website. Other documents that can be used to support the specialization include expert opinions on the relationship between the degree and the job, affidavits and job listings from competitors or industry peers hiring for parallel positions, past job postings from the company.
  • Proof that the salary will be equal to or greater than the actual or prevailing wage. Geographic location is taken into account in addition to the type and level of the position, as well as related factors. This is proven usually with a Labor Certification Application (LCA) — certified by the DOL — that confirms that the employer is or will be paying wages that are consistent with those paid to similar workers in similar positions with comparable educational and experience levels.

Other Requirements

  • Proof that the employer has the financial means to pay wages for the foreseeable future. The ability to pay must be proven with the employee’s pay-stubs or recent W-2s, the company’s most recent tax returns or audited financial statements reflecting that net income is equal to or higher than the proposed salary, an affidavit from the company’s CFO confirming its ability to pay the salary, or financial statements or tax records showing the company’s net current assets are equal to or greater than the proposed salary in the covered years.
  • Documentation supporting that the business has a genuine business need to hire the H-1B worker.

Certification from the company that:

  • The worker’s education level and experience are commiserate with the position
  • The employment won’t adversely affect the working conditions of similarly situated workers
  • The company will pay the worker’s reasonable costs of transportation back to their home country in the event of a premature termination
  • It is obligated to observe anti-discrimination laws with respect to foreign workers (e.g., no discrimination on the basis of national origin, gender, etc.)
  • It’s obligated to extend to the foreign worker the same benefits provided to U.S. employees (e.g., insurance, sick days, time off, stock options, vacation and any other benefits), and that it’s obligated to observe the same policies, procedures and laws that apply to U.S. workers with respect to bonuses and promotions

Show Me the Numbers

Every company, regardless of size or age, must petition for one of the 65,000 H-1B visas that are made available every April 1st by U.S. Citizenship and Immigration Services. 6,800 of those visas are set aside, per trade agreements, for immigrants from Singapore and Chile. An additional 20,000 H-1B visas are made available for workers with advanced degrees, meaning a master’s degree or above. Usually, more applications are filed than visas are available within the first week of April, meaning that the fate of the employee’s visa rests in the hands of an annual lottery.

H-1B Application Process

The H-1B process, as outlined by the USCIS:

  • Step 1: (only required for specialty occupation and fashion model petitions): Employer Submits Labor Condition Application (LCA) to DOL for certification. The employer must apply for and receive DOL certification of an LCA. For further information regarding LCA requirements and DOL’s inert process, see the “Foreign Labor Certification, Department of Labor” page.
  • Step 2: Employer Submits Completed Form I-129 to USCIS.
    The employer should file Form I-129, Petition for a Nonimmigrant Worker, with the correct USCIS Service Center. Please see our I-129 Direct Filing Chart page. The DOL-certified LCA must be submitted with the Form I-129 (only for specialty occupation and fashion models). See the instructions to the Form I-129 (PDF, 347 KB) for additional filing requirements.
  • Step 3: Prospective Workers Outside the United States Apply for Visa and/or Admission. Once the Form I-129 petition has been approved, the prospective H-1B worker who is outside the United States may apply with the U.S. Department of State (DOS) at a U.S. embassy or consulate abroad for an H-1B visa (if a visa is required). Regardless of whether a visa is required, the prospective H-1B worker must then apply to U.S. Customs and Border Protection (CBP) for admission to the United States in H-1B classification.

Have any more legal questions? Sandy the Squirrel, our legal bot, can answer them instantly, or connect you with a legal researcher who can help find more information on your question in 24 hours.

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