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Can a startup sponsor an employee for an H-1B visa?

A group of employees gathered

The H-1B visa is a non-immigrant visa that permits a company to hire workers in specialty occupations.  This visa category requires that the beneficiary (the foreign worker) have a bachelor’s degree, and the petitioner (the U.S. company) can employ the worker for up to six years.

Startups are able to sponsor employees for H-1B visas but there are some additional considerations if the employer is a startup.

  • Does the company have the ability to pay the prevailing wage? H-1B visa holders must be paid the higher of the prevailing wage or the actual wage (meaning the wage paid to other similar workers in the same job at the company). For newer companies, especially those that do not yet have any revenue, USCIS will want to see proof that the company has the ability to pay the wage. The company may include bank statements or proof of investment to show that it can meet this requirement.
  • Does the company have specialty occupation work for 3 full years? Another potential concern with a startup is whether the company has enough specialty occupation work for the employee. This can be demonstrated a variety of ways depending on the type of work being performed. If the company has contracts with clients that outline the work, this can be included. You may also include a business plan, pitch deck, and evidence of the assignments that the employee will take on to show that there is sufficient work.
  • Does the employee have any ownership interest in the company? To qualify as an H1B employee there must be an employer-employee relationship, meaning the company must have control over the employee’s work product and must have the ability to fire the employee. If the employee has a substantial ownership interest you can include documents such as the employment contract, resolutions from the Board of Directors, meeting minutes, Operating Agreements, organizational charts or other documents demonstrating the employer-employee relationship.

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