April 28, 2015 Douglas Lightman

Overview of the H-1B Visa for a Startup Business

Despite an abundance of skilled, qualified, and highly-educated workers already living in the United States, there will be times when the most talented individuals in a given field are of foreign descent.

It’s why companies file thousands of annual petitions with the USCIS to bring H-1B foreign nationals to the U.S.; they understand that employing the best and brightest is often the difference between their company’s ultimate success and failure, and in many cases it’s a foreign national who best fits the bill.

Securing the services of these talented foreign nationals is not a given, however, as a U.S. employer must prove to the USCIS that they have, among other things, the financial wherewithal to pay an H-1B worker the prevailing wage of the offered position and enough specialty occupation work to keep the worker occupied during the duration of the employment.

This usually isn’t a problem for large corporations or established business entities, but it can be a tricky proposition for startup companies who are just starting their operations. And as a fledgling company employing top foreign talent will probably realize far more benefit than an established corporation might under similar circumstances, it’s a fairly important issue for such startups.

To that end, read on to learn about the ways a small startup can successfully sponsor an H-1B visa.

H-1B Visas for Startups

As mentioned, the primary obstacle facing a startup attempting to sponsor an H-1B visa is proving to the USCIS that they have the cash flow to pay the foreign national the prevailing wage and proving they have enough work.

As startups won’t usually have established revenue streams, they may have to demonstrate to the USCIS how their venture capital will pay the wages, for example.

Other items the USCIS might request for proof that the business entity is indeed legitimate and there is enough work for the H-1B individual can include, but isn’t limited to, the following:

  • Business plans
  • Employee contracts
  • Office space leases
  • Annual reports
  • Tax returns
  • Vendor contracts
  • Letters of recommendation from investors
  • Contracts with clients
  • Statements of Work
  • Organizational chart
  • Bank account statements
  • Quarterly tax returns
  • Marketing material
  • Payroll summaries
  • Office lease

In short, a company without a proven track record of business activities, profits, and revenues will incur extra scrutiny from the USCIS to prove that it is indeed a viable business.

However, being a startup in and of itself is not necessarily a barrier to sponsorship of H-1B visas. In fact, the USCIS has begun to recognize the wide-reaching economic impact that of H-1B foreign nationals can provide to companies and the U.S. economy in general, and has made statements suggesting that they are receptive to petitions filed by legitimate start-up businesses.

Tips for a successful petition

While there are no guarantees that the USCIS will approve a given H-1B petition, the following tips can garner you better odds for a successful outcome:

  • Be proactive – Give the USCIS more information than they ask for and don’t wait for a Request for Evidence (RFE). In addition to the aforementioned documentation, photos of facilities and business premises, financial documents, partnership contracts, etc. are all valuable pieces to building your case as being a legitimate, viable startup.
  • Ensure that there is a clear, delineated employer-employee relationship – Some startups, especially tech companies, run into problems here when they attempt to position a cofounder of the business in a dual role as an employee, which is not allowed under USCIS guidelines for companies petitioning for H-1B visas.
  • Consult with an experienced U.S. immigration attorney – It can be difficult navigating the H-1B process by yourself, but it’s likely that an experience immigration has handled hundreds of similar cases and knows the ins and outs of the process. While no H-1B attorney can guarantee of a successful petition, an experienced H-1B visa lawyer can definitely improve your chances of getting your petition approved.

For more information on the H-1B Visa for startup businesses, contact Lightman Law Firm at (212) 643-0985 or submit a consultation request online. Also visit our web site’s H-1B section to learn even more. 

Lightman Law Firm was recently honored as New York’s 2014 Immigration Law Firm of the Year by Acquisition International. Additionally, founding attorney, Douglas Lightman, was named a “Rising Star” by SuperLawyers.com. Lightman Law Firm also carries a 4.9 rating on Google Reviews.

Douglas Lightman

The award-winning Lightman Law Firm was founded by Douglas M. Lightman, Esq. Mr. Lightman has extensive experience in immigration law and international matters through both work and personal experience.Prior to forming Lightman Law Firm, Mr. Lightman spent several years at an international tax consulting and compliance firm where he focused on international tax consulting and cross border transactions. Mr. Lightman is a United States trained lawyer who received his law degree from Brooklyn Law School and is a member in good standing of the Bar of the State of New York and a member of the American Immigration Lawyers Association, the world's largest organization of immigration lawyers.To discuss your possible case with Mr. Lightman or another immigration lawyer from Lightman Law Firm LLC, call (212) 643-0985 or fill out the consultation request form on your right. A representative of our firm will contact you shortly upon review of your request.