H-1B Specialty Occupation Visa

H-1B is the most common U.S. work visa. It is employer-specific, which means that you can only work for the for the H-1B petitioning U.S. employer. Each new or concurrent employer must first file a new H-1B petition for the foreign worker.

Initial period of stay in the United States: Up to 3 years. Extensions possible in up to 3 year increments. Maximum period of stay: 6 years. Extensions beyond 6 years are possible in certain circumstances.

The H-1B visa has an annual numerical limit "cap" of 65,000 visas each fiscal year with the additional 20,000 visas allocated for the aliens with the Master’s degree from a U.S. university.

There are two important dates that you should keep in mind. April 1 is the first day when you can file the cap-subject H-1B petition. However, the H-1B employee will not be available to start working for the employer until the beginning of the fiscal year, which is October 1. There are exceptions to this general rule for CAP-exempt H-1B petitions and current students under OPT program, who may start working for the new employer before October 1.

Entrepreneurs with an ownership stake in their own companies, including sole employees, may be able to obtain an H-1B visa if they can demonstrate that the company has the independent right to control their employment.

In other words, in order to qualify for H-1B in your own company, you have to show that there is an employer-employee relationship between you and your business, as indicated by the fact that the company has the authority to supervise your work, fire, and otherwise treat you as a regular employee of the company.

With a corporation, you can show employer-employee relationship if there a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control your employment.

Aside from showing a Board of Directors that controls your work, you can present evidence of preferred shareholders, investors or other factors establishing that the petitioning company has the right to control the terms of your employment.

With an LLC, you may be able to show a valid employer-employee relationship if Manager of the LLC controls employment of workers as provided for in the Operating Agreement. That Manager may not be the H-1B beneficiary.

Aside from establishing employer-employee relationship, Entrepreneur in a start-up company needs to keep in mind other important considerations in order to qualify for H-1B.

Below are the specific points to consider in a start-up H-1B:

Bona Fide Job Offer -

One of the very important points looked at by USCIS in a start-up is whether the H-1B beneficiary has a bona fide job offer from the petitioning employer and whether the employer intends to pay the beneficiary the prevailing wage.

USCIS wants to see that the company’s business is viable and that the employer will not “bench” the employee, leaving the employee without pay.

Thus, it is recommended to include bank statements of the company for the last several months or evidence of a wire transfer showing initial capitalization of the business and ability to cover initial operating expenses.

In addition, the H-1B petitioner needs to explain how it expects the business to take off and include any contracts, business plans, documentation on any preliminary negotiations, the projects the company is planning to engage in, etc.

The need for H-1B position and sufficiency of specialty occupation work -

Another point that USCIS considers is whether the petitioner has the need for the position of H-1B beneficiary. USCIS wants to see that there is enough specialty occupation work (that requires at least a bachelor’s degree) available for the H-1B beneficiary and that H-1B beneficiary will not perform other non-specialty occupation tasks.

USCIS is concerned that H-1B employee in a start-up business will not be involved in the actual H-1B-caliber duties but will be doing administrative, sales or clerical work that does not qualify for H-1B.

It is therefore recommended to include explanations as to why the business requires the services of the H-1B employee and include any supporting documentation of what the H-1B employee is expected to be doing, what projects he/she is supposed to work on, collaborated by contracts with customers/partners, etc.

In addition, in start-up H-1Bs our office has included documentation showing who is responsible for the administrative/clerical functions. Even if the company has no other employees on W-2, they may have outside companies that they employ specifically to provide bookkeeping, advertising, or secretarial services. This will serve as additional proof that the H-1B employee will focus only on those duties listed in the H-1B petition and will be relieved from performing administrative functions.

Often times, it may make sense for a start-up company to sponsor a part-time H-1B at first as opposed to a full-time position because it may be easier to show the need for a part-time position especially if there are few or no other employees in the business.

Sufficiency of production space to accommodate the work of the beneficiary -

Another point that USCIS often looks at is whether the petitioning business has the facilities to accommodate the work of the beneficiary.

If the entrepreneur is going to work from an office, it is best to include a lease agreement with the floor plan and photographs of the facilities to show sufficient production space. If there is no office yet, USCIS may scrutinize the filing but you may be able to show that the employee will work from home and that the nature of the employee’s work is such that telecommuting is possible.

There may be other important considerations in H-1B petition for a start-up that depend on the specifics of your case and that should be further discussed with an immigration attorney handling your case.

Spouse and unmarried children under 21 years of age of the H-1B worker may seek admission in the H-4 nonimmigrant classification. Family members in the H-4 nonimmigrant classification may undertake full-time studies, but may not engage in employment in the United States. In order to be eligible to work in the U.S., the H-4 holders must change their status to nonimmigrant category for which work is authorized.