Our Immigration Lawyers Explain How to Get the Edge on the H-1B
Whether you own a startup or are a professional worker, here is what you need to know about securing an H-1B immigration work visa.
According to a recent study, startups who hire workers under the H-1B visa system attract more venture capital funding and are more likely to have a successful exit via an IPO or acquisition. They also secure more patents.
The H-1B Professional Immigration Work Visa
H-1B visas are essentially professional work visas typically awarded to specialized workers in the science, engineering and information technology sectors. In other words, they require a bachelor’s degree or higher.
The downside? H-1B visas are more challenging to obtain. And for startups, there are usually additional issues to consider before applying. Most of these issues revolve around proving your legitimacy as a business. Therefore, you’ll also have to prove your need for the kind of specialized professional employee the H-1B is designed for.
Your Immigration Attorney
Your first step should be to contact an experienced immigration attorney. This may sound a little self-serving, but it’s true. There are just too many errors that can be made in the process and very little time allocated to correct those errors during the process.
It’s in your best interest to ensure things are done right the first time. Experienced attorneys know how to avoid the pitfalls and ensure your application is given the best chance of success possible.
The H-1B Immigration Work Visa Process
Invitations to apply for an H-1B visa are distributed via an online lottery system from March 1 to March 20. 85,000 invitations to apply are granted via the lottery system, including 20,000 specifically for advanced degrees.
Employers of those selected in the lottery have 90 days to submit an application.
After that, the application process is where additional issues can arise for startups.
Here are a few solutions to the issues we see most frequently in our offices.
Can You Pay H-1B Wages?
The U.S. Customs and Immigration Service (USCIS) must be convinced that your startup is an actual business and that you can afford to pay the required H-1B wages to your employee.
To prove this and avoid a potential Request for Evidence (RFE) and delays, our office usually submits additional documentation with the application. This can include venture capital agreements, bank statements showing seed funding and initial service contracts you have entered into.
Evidence of potential success, such as news reports or patents is also helpful. All of these can serve to show business is being conducted and that you can afford an H-1B employee.
Do You Have a Need for Specialized Employees?
The H-1B design is for specialty occupation positions and the need for these positions can be difficult to justify for a small startup. For example, the USCIS may question why a startup with four existing employees needs a full-time marketing analyst.
To address this issue, we provide a strong narrative from the company founder that describes how vital the H-1B position is to this young startup. We will also include the educational backgrounds of existing employees at the company, along with evidence that similar small companies are hiring the same type of workers. Often this comes in the form of job postings.
Do You Have a Physical Business Address?
Many startups begin their life in a home office, an incubator or shared office space. The issue with this is that part of the UCIS’ assessment of your application will include an internet search of your business address. Associating the address with another name, or a residential address will have the UCIS question your business legitimacy and send a RFE.
To prevent this, our office includes a website printout that shows that the office is an incubator or share office space that rents to startups like yours.
For residential addresses, we provide evidence of business operations. These can include municipality business permits, leases that approve business use and pictures of the business workspace. Employee agreements allowing for living and working on the premises are also helpful.
We’ve put together a checklist for our startup clients to help them with the process.
H-1B Immigration Work Visa Checklist for Startups
- Company Finances: bank statements, funding or venture capital agreements
- Recent Federal tax return
- Vendor contracts, SoW’s, goods & service agreements, proof of patents
- Singed letters of intent, invoices as proof of ongoing work
- Payroll printouts
- Public/News releases
- Business Plan
- Detailed organizational chart for the H-1B employee’s division
- Lease and pictures of the office
- For Incubator/Shared Office
- Website printout
- Special explanation in the petition letter
- For Home Office
- Municipality permit
- Addendum to lease allowing business use
- Detailed pictures of work space
- Employee agreements
Are you a foreign worker or student interested in working for a promising new startup or a startup looking to employ a foreign worker?
Contact us for a free initial consultation.