Can A Startup Sponsor An H1-B Visa?

Can A Startup Sponsor An H1-B Visa?

An H-1B visa is a type of US visa that allows someone to work in the United States who otherwise wouldn’t be able to.

Any startup can sponsor an H-1B visa, there are just some steps that you have to follow and criteria to meet to be able to do it.

H-1B visas are only given out to people in specialty occupations, such as those that require the application of theory and specific information.

Your startup must be able to justify the H-1B visa by needing this specific worker and show that it cannot be done by someone from your local area, either due to them being unavailable or unqualified.

The first thing you need to do is determine whether the person you’re potentially going to hire qualifies for an H-1B visa.

Those criteria are as follows:

  • Do they have a bachelor’s degree? If they don’t, do they have the experience necessary to make up for it?
  • Is the position you’re hiring for related to a STEM (science, technology, engineering, math) or business?
  • Are you going to be paying them hourly?
  • You must have a Federal Employer Identification Number to be able to employ them. Your Social Security Number (SSN) will not be accepted for this purpose.

Be Aware Of Up Front Costs And Manage Your Expectations

Sponsoring someone for an H-1B visa is going to cost you a chunk of change. For most employers, the cost will end up being somewhere around $5,000. Your startup may or may not be in a position to handle a large expense like that in the beginning.

You can also expect to have your finances scrutinized to make sure you can actually afford to pay the employee the salary you state you’re going to pay them.

The next thing for you to be concerned with is that there are only so many H-1B visas given out in the United States every year starting on April 1st. That number totals 85,000 and 20,000 of those visas are reserved for people who have high level degrees, such as a master’s degree and higher from US colleges. So, you’re going to be competing with lots of applicants for those positions.

Process To Obtain The H-1B Visa

It would be best if you had an attorney handle this process, but if your startup doesn’t have one, here is the general process.

  1. The startup in question must file an Labor Condition Application (LCA) and obtain from the Department of Labor
  2. File an I-129 with the United States Citizenship and Immigration Services and be approved
  3. The potential employee must apply for the visa and get it stamped at the US consulate in their home nation
  4. Finally, the H1-B recipient must come to the US to work for your startup

The Labor Condition Application

This form is an important one, because it is what lets the government know that your employee, if given an H-1B visa, will not harm any US citizens by attaining one. Here’s what the Labor Condition Application wants you to confirm:

  • You’re going to pay them the average salary for the job you’re hiring them for
  • You’re going to give them the same benefits others in this job get
  • You won’t allow them to adversely affect the working conditions of other employees
  • You’re not hiring them to get around work disputes or strikes going on in your business when they are hired

Once you file the LCA, it’s going to made a Public Access File. This means anyone can see a copy of it and know exactly what you’re paying the H-1B recipient.

Hurdles, Road Blocks, And No-Nos

The biggest hurdle that you’re going to have to get over is funding. The United States Citizenship and Immigration Service is going to want to know that you have enough money to pay the H-1B recipient according to the wage you stated in your LCA filing.

To prove that you can do this, you should include information in your filing about your funding amounts, leases for office space, US tax return, or anything else that is relevant to your stable financial situation.

In addition to that, there are a few things that you just can’t do:

You can’t displace a US worker for the same position you’re wanting to hire the H1-B recipient for within 90 days before OR after you file the petition.

You must not fail to attempt to recruit US workers for the same position and you must be able to prove that you did attempt to recruit a US worker for the position.

You can’t hire the H1-B recipient and then “bench” them, which means not give them anything to do within your company. Even if the H1-B recipient does work for someone else, you’re still required to pay them just as you said you would in your petition filing, even if there is legitimately nothing for them to do. Even if the business shuts down, you’re still obligated to pay them what you stated you would in your LCA.

You can’t withhold payment due to the claim that they did not perform work. If you don’t pay the employee, you’ll be in violation of federal regulations concerning the application you filed and you will be required to pay the employee whatever is outstanding.

Can You Sponsor An H1-B Visa For The Startup Founder or CEO?

It may sound strange, but the answer to that is “yes”, as long as their employment is controlled by someone else within the company. As long as someone else, such as a board of directors, can hire them, fire them, change their pay, etc, then there won’t be an issue. They’ll be treated like any other H1-B applicant. The USCIS requires that any potential H1-B recipient be subject to the hiring and firing authority of someone else within the company.

Some Notes About The H-1B Visa For Your Startup

The total stay of the visa is limited. The worker will initially be approved for only 3 years, but they may apply for an extention of an additional 3 years.

The visa can be re-stamped at any US consulate, so the worker does not have to return to their home country to have it done.

You’re not the only business the worker can perform labor for, as long as the other companies they perform labor for also have an Form I-129 approved for them.

Once the person has their H-1B visa, they can qualify to get a green card and permanent residency.

If you lay your employee off, they have 60 days to find other employment or to transfer their visa to another class (like an L1 visa) if they don’t want to leave the country.

Consider Hiring An H1-B Service

If you want to increase the odds that your applications are approved, you should hire an H1-B attorney to handle the process for you. They’re already familiar with the entire process and what it takes to get approved. You can cut the cost by not hiring one, but the odds of being approved will drop sharply.