Our Lawyers Explain How to Get an Edge Using H-1B for Your Business
Whether you own a startup or are a professional worker, here is what you need to know about securing an H-1B Visa with a startup.
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 Worker Visa
H-1B visas are essentially professional work visas that are typically awarded to specialized workers in the science, engineering and information technology sectors. They require a bachelor’s degree or higher.
The downside? H-1B visas can be 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. You’ll also have to prove your need for the kind of specialized professional employee the H-1B is designed for.
The H-1B Process
For this year, invitations to apply for an H-1B visa are distributed via an online lottery system that opened 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 when representing a startup client.
Can You Pay H-1B Wages?
The U.S. Citizenship 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 always submits additional documentation with the petition to address this issue. In addition, 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. In other words, 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 is a 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 USCIS’ assessment of your application will include an internet search of your business address. If the address is residential or associated with another name. The UCIS will question your business legitimacy and will send an RFE.
To prevent this, our office includes a website printout that shows that the office is an incubator or shared 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 work space. Employee agreements allowing for living and working on the premises are also helpful.
Ultimately, while H-1B’s for startups can be more challenging. Such cases can be approved without a Request for Evidence if you anticipate the concerns of the USCIS in your initial filing.
Do you have questions regarding how the H1-B Visa can help your startup? Contact us for a free consultation.
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