H-1B FAQs for Startups

You’re an insanely busy startup founder, not a work visa master. If you’re struggling to understand your work visa options, don’t spend another second worrying about it—we have you covered! We spend every day helping startup founders understand their options and preparing visa applications without mountains of paperwork or the hassle of hiring an immigration attorney.

Can startups sponsor someone for a H-1B?

Yes, absolutely! The H-1B is not just for big companies. Companies of all sizes can sponsor an H-1B as long as they:

  • Have a registered/incorporated company in the US with a Federal Employer Identification Number (EIN/FEIN);
  • Can demonstrate viable cash flow and/or funding; and
  • Have existing physical office(s) in the US.

If I needed to know one major thing before considering sponsoring someone for a H-1B, what would it be?

The best thing you can do before sponsoring a H-1B visa is to understand if the candidate needs a new H-1B or a transfer. Let’s breakdown the differences:

  • New H-1B Visas
    • There are strict government deadlines for new H-1B applications;
    • There is a lottery system in place–only 85,000 H-1B petitions are issued each year; and
    • The earliest someone can start on H-1B status is October 1 of the application year–the H-1B is a great option for recent grads from US universities because, more than likely, they can work in the US while their application is being processed.
  • Transfers – If you’ve found the perfect candidate who is already a H-1B visa holder, they can change employers under a process called the H-1B transfer. It takes about 2 weeks to compile and submit a petition to US Citizenship and Immigration Services (USCIS), and your hire can begin working on your team as soon as USCIS issues a notice confirming that they have received the H-1B petition.

Ok, so what do you mean by H-1B ‘lottery’?

Often referred to as H-1B ‘Cap,’ the H-1B lottery applies to new H-1B visas. In order to address the high demand (around 250,000 people apply each year!), USCIS has implemented a lottery. However, there are important changes coming to the 2021 lottery, so stay tuned for an announcement. You can be sure we’ll cover the details right here on our blog, so check back for updates!

What are important dates to keep in mind for the H-1B lottery? 

  • January through April 
    • Submit the Labor Condition Application (LCA) to the Department of Labor
    • Gather required documents (check out Legalpad’s checklist here)
    • Coordinate signing documents
  • April – October 1
    • Petitions are selected by USCIS
    • Current processing times:
      • Without premium processing – approximately 3-6 months
      • With premium processing (two weeks from ‘receipt’) – the receipt date is an arbitrary date USCIS determines after the lottery process is complete
  • New process coming for fiscal year 2021 – changes are coming
  • USCIS will open registrations for prospective H-1B applicants and let registered companies know whether they have been chosen for the lottery prior to submitting a full petition—great news for small companies!

If the lottery is for ‘New’ H-1B visas, are there H-1Bs that are exempt from the lottery process?

Definitely! Individuals who already have H-1B visas–and there are a lot of them–can transfer their existing H-1B to your startup. There are also H-1B1s, a work visa available to Chileans and Singaporeans. Contact us if you have any employees that are from these two countries and we can map out their options!

What about all the compliance stuff though? Like minimum salaries and Department of Labor forms?

All of this sounds scary. There is something called a Public Access File (PAF) that you’ll have to maintain for HR purposes, but it’s as simple as keeping a document on-file in your office. Beyond that, Legalpad takes care of each step involved with putting together your cases.

Can I get an H-1B for anyone I want to bring into the US?

Candidates who meet the qualifications below are most likely eligible for the H-1B:

  • Education and/or work experience equivalent to at least a 4-year US bachelor’s degree (can be a foreign degree); or
  • Education/work experience that matches the H-1B position

 Can I use the H-1B for any position at my startup?

There are different visas for different people, and the H-1B is a great visa for most startup roles. You’ll want to make sure the position:

  • Matches a job category in Foreign Labor Certification Data Center’s list of specialty occupations;
  • Requires a 4-year US bachelor’s degree or higher; and
  • Meets or exceeds the US Department of Labor’s wage level for that position type.

Why should I consider the H-1B?

The H-1B is an excellent way to attract and access a larger talent pool. It’s also a great path to a green card, which is an attractive benefit for many candidates who would like to apply for permanent residency in the US.

Reach out to us and our team will walk you through every step of the H-1B process!