Can a Startup Realistically Sponsor an H-1B or Is That Just for the Big Companies?

Yes, it’s definitely plausible and varies by case but there are a few issues to consider before your employer should request a petition. As you may already know, you cannot file the petition yourself (even in F1 status) as it has to be done by your employer. Startups often have concerns over whether or not they can successfully petition for H-1B visas. 

Before getting into if it’s realistic, you need to ask the potential hire 3 big-picture questions that determine if they qualify for an H1-B Visa in the first place:

  1. Do you have a bachelor’s degree or the equivalent (3 years of experience can equal 1 year of education)?
  2. Will you be working in a specialty occupation (science, tech, engineering, math, business)?
  3. Will the employee be paid an hourly wage?

These are the requirements, broken down for an H1-B Visa and examples of evidence to meet them:

  1. Do the prospective hire and the startup have an employer-employee relationship? (Can you-the startup hire, fire, pay, supervise, and control its employees?)
    1. ***If you own your company, if your company has a board of directors, preferred shareholders, investors; these are factors that show control.
      1. Your company can use the following documents as evidence: Term Sheet; Capitalization Table; Stock purchase Agreement; Investor rights Agreement; Voting Agreement; Organizational documents and operating agreements
  2. Does the position offered to the potential hire require a bachelor’s degree or the equivalent?
    1. US Citizenship and Immigration Services (USCIS) often refers to theOccupational Outlook Handbook (OOH) from the Department of Labor (DOL) to help determine whether certain jobs require a degree. 
    2. If the OOH indicates that a bachelor’s degree isn’t required, these are examples of evidence you can use to show that a degree is required:
      1. Copies of past position announcements
      2. A detailed description of the petitioner’s business/products/services and the duties of the position, along with written opinions from experts confirming that your position is so specialized or complex it can only be performed by someone with a degree (in a related field).
      3. Job listings, letters and/or affidavits from other employers reflecting the minimum requirements for the position and which shows that the degree requirement is common to the industry in parallel positions among similar organizations.
      4. Written opinions from experts in the field explaining how the degree is related to the role you will perform.
  3. Is the potential hire being paid at least the actual or prevailing wage for their occupation, whichever is higher based on the US Department of Labor’s database?
    1. The U.S. Department of Labor (DOL) maintains a database with applicable current prevailing wage levels based on occupation and work location. 
      1. To view the wage database and estimate the prevailing wage that may be required for your position, click here.
  4. How do you show that the potential hire will be paid the actual/prevailing wage?
    1. Submit a Labor Condition Application (LCA) for your position, certified by the Secretary of Labor.
    2. If the person needing an H1-B Visa is already working for your company, they should provide W-2’s and recent pay stubs to show they’re being paid an appropriate wage.
  5. The H-1B visa has an annual numerical limit, or cap, of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. 
  6. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization are not subject to this numerical cap.  
    1. Cap numbers are often used up very quickly, so it is important to plan in advance if you will be filing for an H-1B visa that is subject to the annual H-1B numerical cap. The U.S. government’s fiscal year starts on Oct. 1. 
    2. H-1B petitions can be filed up to 6 months before the start date, which is generally April 1 for an October 1 start date.

To summarize, as long as the process is carefully planned out and the documentation is available, the startup should have no issue obtaining an H-1B approval. However, an experienced attorney is an important part of this process and can navigate this often very complex process.

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