• February 2020
    M T W T F S S
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What are the minimum requirements for a startup to be eligible to sponsor an H1B visa?

It’s plausible and varies by case but there are a few issues to consider before your employer should request a petition. As I am sure you 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.

Just to preface, I’ve had some success with starting 2 internet based businesses along with spending a lot time/money navigating all the legal stuff.

Currently, I’m helping 100’s startup employees find and hire immigration lawyers at prices that work for them with: LawTrades.

Okay, now that we have some credibility out of the way, let’s get it on.

Since the company is new, they have the burden of proof in regards to proving that they are a legitimate company. The USCIS absolutely has to be convinced of this and it is usually done with a business plan, contracts, leases, payroll records, clients, photos of the premises, etc. If there are any investors or any form of venture capital funding involved with the $200k in funding then they could certainly add credibility to the business as well as vouch for the nature of the funding. The company will also have to be of sufficient size (a 4 member team may suffice) and have the appropriate legal structure as these will be scrutinized along with everything else.

I. The Prerequisites

Just to clarify a few things, the company seeking your services as an international student must be able to legally fit the description of a U.S. employer which is defined as a “person, firm, corporation, contractor or other association or organization in the United States with an IRS tax identification number known as a Federal Employer Identification Number (FEIN).” There must also be an employer – employee relationship which is demonstrated by the fact that you can be hired, fired, paid, or supervised.

The company will also have to adhere to the Department of Labor (DOL) requirements in order to obtain a Labor Condition Application (LCA). The DOL will certify the LCA and then form I-29 will be submitted and reviewed by the USCIS and this is when all of the documentation needs to be presented. Your employer will need to validate the fact that the business has enough funds to pay “market wage” for you as this is one of the requirements. Market wage is often difficult to determine, however, the USCIS uses factors listed below and the average salary per the Department of Labor’s Occupational Outlook Handbook (OOH) along with other methods to determine such a value. Furthermore, your employer would also have to disclose why they think you are the only person that can fill the needs of this position. Without knowing some more specific information involving your situation, a monthly salary of $2,000.00 or an annual salary of $24,000.00 may or may not meet such a requirement. A few additional basic guidelines for establishing market wage include:

  • Job title
  • Job description
  • Job location
  • Type of employer
  • Rulings by the National Prevailing Wage Center (NPWC)
  • Department of Labor’s Occupational Outlook Handbook (OOH)

II. Specialty Position and Educational Requirement

Your position would also have to be considered a specialty position and you need to be employed on a full or part-time basis. A specialty occupation normally requires a bachelor’s degree or higher or at the very least an equal amount of experience within that particular field. However, some positions that do not require a bachelor’s degree can still be considered a specialty position if they are so complex that only specialized individuals can perform them. In general, professional positions (accountant, architects, engineers, teachers, nurses, economists, lawyers, etc.) are considered specialty positions.

This also ties into the educational requirements needed to engage within the specialty occupation. If you do have a bachelor’s degree and did not earn it from an accredited institution within the United States, then your degree will have to be evaluated and must be determined to be an equivalent degree to one in the U.S. If this test fails, then the requirement of sufficient work/education experience has not been fulfilled. As previously mentioned, if no bachelor’s degree has been obtained the substitute is typically three years of work experience equals one year of college education. For a four year bachelor’s degree, you would need 12 years of work experience in a specialty position. On top of everything else, if state law requires an employee to hold a certification (such as a registered nurse) then you will need to obtain that certification as well.

III. H-1B Dependent Employer

Finally, if your employer is an H-1B dependent employer, a willful violator, or a TARP recipient, the will have to attest to three statements:

  • The employer will not displace a similarly employed U.S. worker within 90 days of applying for an H-1B visa
  • The H-1B visa employee will not be placed at another worksite
  • The employer sought out a qualified United States worker to fulfill the position at the same wage that is being offered to the H-1B visa employee. The employer will also offer the job to any United States worker that applies and is just as qualified if not better than the H-1B employee.

IV. In Conclusion

You should also be aware that the number of H-1B visas issued per fiscal year is capped at 65,000. The fiscal year runs from October 1st to September 30th. 6,800 of these H-1B visas are reserved for Chile and Singapore in relation to the Free Trade Agreements between the United States and these specific countries. An additional 20,000 visas are available to those who have received a Master’s degree or higher from an accredited institution within the United States.

This process may seem unattainable and daunting; however, even though it is sometimes difficult to do so, there is a high possibility for a startup to obtain approval for an H-1B assuming they meet all of the requirements. Here’s a useful video where you can learn more: http://vimeo.com/13374673

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. We can connect you with a qualified immigration attorney today at LawTrades.