Successful start-up and small companies that wish to grow usually begin with a clear roadmap to achieve their goals. This plan includes objectives, timelines, staffing requirements, and plenty of action plans.
In some technical areas, the staffing challenge can be the most significant hurdle to achieving overall objectives. While there may be plenty of specialized expertise in the United States, the right people may not be available, either because they are otherwise employed or are unwilling to relocate. In these instances, smaller companies may need to look beyond the United States to find specially qualified and educated individuals that can help execute the plan. While large companies do this regularly, the same approach would apply to smaller companies.
Bringing qualified foreign employees into the United States for essential positions most commonly requires the issuance of H-1B visa, a non-immigrant visa created by the United States Citizenship and Immigration Services (USCIS) to allow companies to employ qualified foreign workers for specialty positions.
While some large company managers and human resource departments participate routinely in this process, how does a small or start-up company take advantage of this opportunity? The simple answer is that the requirements are the same for small businesses, though each applicant must demonstrate their financial viability and ability to compensate the foreign employee during their stay.
There are several other hurdles and documentation required that often require an immigration to help navigate the process with a higher chance of success.
What is an H-1B Visa?
H-1B Visas are a non-immigrant visa designed to allow qualified companies to sponsor non-citizens to come to the United States and work in specialized jobs. The individual should have a bachelor’s degree or equivalent experience in the prospective position. Once granted, the individual may remain in the United States for three years. At the end of that time, companies may reapply for an additional three years for a total of six years.
The USCIS currently maintains a quota of 65,000 H-1B visas per year. An additional 20,000 more H-1B visas are reserved for recipients of Masters degrees or more. Definitions of some typical professions and potential job descriptions are outlined on the USCIS website.
Because the number of applications annually surpasses the quotas, the USCIS has created a lottery. In 2015, according to upcounsel.com, the number of qualified employer applicants equaled three times the number of those accepted for working visas.
What is the H-1B Visa Process?
As outlined by USCIS, requesting sponsorship for an H-1B candidate requires a 3-step process:
- Step 1: The employer begins by presenting a complete and accurate Labor Condition Application (LCA) Form 9035 to the Department of Labor. The application must be approved before submitting to the USCIS. Additionally, the employer must inform existing employees of the intent to hire a foreign worker in a public access notice. The LCA requires that the employer will not pay the international employee at a rate less than existing employees, may not be involved in a current labor stoppage, dispute or strike, and that union officials have been notified, where applicable.
- Step 2: The employer files a completed Form I-129, Petition for a Nonimmigrant Worker, with the USCIS. The application should also include the certified Department of Labor approval of the LCA.
- Step 3: The prospective foreign employee applies to the Department of State at the appropriate U.S. embassy or consulate. Here the individual will prove qualifications for the H-1B visa. Also, the individual will apply to the U.S. Customs and Border Protection (CBP) for admission under the visa.
For first-time employer applicants, these processes require considerable preparation, compliance, and accuracy. any problem will result in failure or a substantial waste of effort. The complexities of the process demand representation by a professional immigration lawyer. In Dallas, Davis & Associates immigration law firm is experienced in the successful handling this type of visa application. Professionals understand the process and can save time and headaches that usually considered complicated bureaucratic procedures.
New 2020 H-1B Electronic Pre-Registration Process
USCIS announced in 2019 a new pre-registration process that supposedly will “streamline processing” and “provide overall cost savings” to employers.
In fiscal year 2021, prospective H-1B petitioners will be required to electronically register and pay the $10 registration fee. The random H-1B selection process will only include those who have done the online registration.
Visit the USCIS website to learn more about the H-1B Electronic Registration Process.
Small and Start-Up Companies and H-1B Visas
After the LCA process, the process becomes challenging for smaller or start-up companies. USCIS must ensure that the company has the financial stability to maintain the employee during the period of employment. The prospective employer should show such elements as cash flow, current contracts, balance sheets and income statements and even tax returns. Professional legal counsel is vital to ensure the application is correct and complete.
H-1B Sponsorship: Information for Companies That Sponsor H-1B Visa Recipients
H-1B visas are available to people who work in a specialty occupation, engage in cooperative research and development projects administered by the United States Department of Defense, or engage in fashion modeling, provided that the model has national or international acclaim and recognition. The filing fee is currently $460, and the visa lasts for up to 3 years – but employers can renew the visa.
If your company wishes to sponsor one or more H-1B visa recipients, you can file a petition on their behalf. The positions these people will occupy usually have to require bachelor’s degrees (or higher) in a specialty field, but not always. It may be in your best interest to reach out to a Dallas or Houston business immigration attorney who can help you evaluate your options.
What is H-1B Sponsorship?
H-1B sponsorship occurs when a qualified employer petitions the U.S. government on behalf of one or more employees and the government agrees to let those employees come to the United States. In order to apply for an H-1B visa:
- You must have an employer-employee relationship with a U.S. employer who is petitioning for your visa. The employer must be able to hire, fire, supervise or otherwise control the beneficiary’s employment.
- The job you are taking must be in an occupation that requires a degree or specialty skill.
- You must be able to demonstrate that your education, specialty or skills are required to perform the job.
- The employer must pay you equal to or higher than the prevailing wage for your occupation in the geographic area of intended employment.
- You cannot sponsor yourself as an employer and employee.
What Are H-1B Requirements?
In order to qualify for an H-1B visa, you must meet very specific requirements. Here’s a brief outline of each.
H-1B Specialty Occupations Requirements
If the job you’re taking requires theoretical and practical application of a body of highly specialized knowledge and a bachelor’s (or higher) degree in your specialty, you may be eligible to apply for an H-1B Specialty Occupation visa. The position must meet one of these criteria:
- A bachelor’s degree or higher (or its equivalent) is normally the minimum entry requirement for anyone to take the job
- The degree requirement is common to the industry, or the job is so complex and unique that only a person with a degree can perform it
- The employer usually requires a degree or its equivalent for the same position
- The duties are so specialized and complex that the knowledge required to perform the job is typically associated with people who have a bachelor’s degree or higher
Additionally, you must have a degree (either from the U.S. or abroad) from an accredited college or university, or you must hold an unrestricted state license, registration or certification that permits you to practice the occupation, and you must be able to immediately engage in that specialty in the state where your employer intends for you to work. If you don’t have a degree, you must have:
- Education, specialized training, or progressively responsible experience that’s equivalent to the completion of a bachelor’s degree or higher
- Have recognition of expertise in your specialty through progressively responsible positions that are directly related to your specialty
H-1B2 DOD Researcher and Development Project Worker Requirements
If you’re a Department of Defense researcher or development Project worker, you must include these things with your petition:
- A verification letter from the DOD project manager for your project that states you’ll be working on an appropriate project
- A general description of your duties on the project and your dates of employment
- A statement indicating names of aliens who are currently employed on the project in the U.S., as well as a handful of other details
H-1B3 Fashion Model Requirements
If you’re a fashion model, you must be coming to the U.S. for a position that requires a fashion model of prominence. You must be a model of distinguished merit and ability.
Do You Need to Talk to an Attorney About H-1B Visas?
We may be able to help you sponsor workers under the H-1B program. Call us or contact us online today to speak with an immigration attorney who can answer your questions and help your company move forward.