Navigating the H1B Visa Process for Startups: A Comprehensive Guide for 2023

March 13, 2024

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As the startup industry continues to thrive, an increasing number of entrepreneurs from around the world are flocking to the United States in pursuit of the American dream. However, obtaining an H1B visa can be difficult, especially for those who are unfamiliar with the intricacies of the application process. 

That's why levy recently hosted a lunch and learn session with Alfred, an experienced immigration attorney, to provide startup founders with a comprehensive overview of the H1B visa process in collaboration with Scale LLP.

The event was well-attended by a diverse group of startup founders who were eager to learn more about the H1B visa application process. 

In this article, we recap the event, discussing everything you need to know about the H1B visa process for startups.

Understanding the H1B Visa Process

It's critical to understand that the H1B visa is a non-immigrant visa that allows US employers to hire foreign workers in specialty occupations on a temporary basis. The process starts when the employer files an H1B petition with the USCIS on behalf of the foreign worker.

The petition must include proof that the job is a specialty occupation, that the foreign worker is qualified for the job, and that the employer will pay the prevailing wage for the job.

After the petition is approved, the foreign worker can apply for an H1B visa at a US consulate or embassy in another country. A valid passport, the approved petition, and proof of qualifications are all required of the worker.

Note that the H1B visa has an annual visa cap, which means that only a certain number of visas are available each year. This cap can make the process even more competitive, so startups must plan ahead of time and begin the process as soon as possible.

Furthermore, the H1B visa is tied to the employer who filed the petition. If the foreign worker leaves that company, he or she may need to find a new job that will sponsor their visa or leave the country.

Overall, the H1B visa process can be complicated and time-consuming, but understanding the process and planning ahead of time can help startups successfully navigate it.

Eligibility Criteria for H1B Visa

Every startup founder wants to bring talented international workers to the US through the H1B visa program. Here are some key points you should know that must meet the eligibility criteria:

  • Specialized Knowledge and Skills: The H1B visa is intended for workers with specialized knowledge and skills that are not widely available in the United States. Your startup must demonstrate that the position for which you are hiring requires such specialized skills.
  • Educational Requirements: The employee you're hiring must have a bachelor's degree or higher in their relevant field of study. If the employee has a foreign degree, you must have it evaluated by a third-party agency to see if it is equivalent to a US bachelor's degree.
  • Prevailing Wage: Your startup must pay at or above the prevailing wage for that specific occupation in the geographic location where the worker will be employed. The Department of Labor determines the prevailing wage.
  • Job Offer: You must provide the worker with a job that is temporary in nature and for a set period of time. You must also demonstrate that your startup and the worker have a valid employer-employee relationship.
  • Quota: The United States Citizenship and Immigration Services (USCIS) issues a yearly quota of 65,000 H1B visas, with an additional 20,000 visas available for workers with a US master's degree or higher.

As a startup founder, Before beginning the H1B visa process, it's critical to understand these eligibility criteria. Failure to meet these requirements may result in delays, denials, or even legal ramifications. To ensure your startup's success in the H1B visa application process, it is recommended that you work closely with an experienced immigration attorney.

Tips for Startups Applying for H1B Visas

Applying for an H1B visa as a startup founder can be a challenging task, but it doesn't have to be. The process can be made much smoother with the right guidance and knowledge. Here are some simple tips to help you navigate the H1B visa application process:

  • Plan ahead: Since this H1B visa application process can take several months, it is essential to plan ahead of time and begin the process as soon as possible.
  • Work with an experienced immigration attorney: Working with an experienced immigration lawyer can help you avoid common pitfalls and improve your chances of a successful H1B visa application.
  • Gather all necessary documents: Before you begin the application process, make sure you have all of the necessary documents, such as your educational and work experience certificates, as well as any other supporting documents.
  • Be prepared for a rigorous review process: The H1B visa application process is rigorous, and your application will be scrutinized closely. Ensure that your application is as strong as possible and that you are prepared to answer any questions that may arise.

By following these guidelines, you can improve your chances of obtaining an H1B visa and ensuring that your startup has the talent it requires to grow and succeed. Remember that while the H1B visa process may appear challenging, with the proper guidance and preparation, it can be a much smoother experience.

Common H1B Visa Issues for Startups

Despite the potential benefits of H1B visas for startups, there are some common issues that startups may encounter during the application process or after their employees have been granted the visa. Here are a few of the most common problems:

  • Layoffs and Terminations: According to data from the U.S. Bureau of Labor Statistics, layoffs happen to a significant number of employees every year. In fact, in 2020 alone, there were around 2.3 million layoffs and discharges in the private sector. When a company sponsors an H1B visa for an employee, that employee's status in the United States becomes their responsibility. If the employee is fired, the company must notify USCIS and withdraw the H1B petition. Failure to do so may result in legal ramifications for both the company and the employee.
  • Minimum Wage Requirements: According to H1B visa regulations, the sponsoring employer must pay the visa holder at least the prevailing wage for their occupation in the geographic area where they will be working. Startups may have difficulty meeting these wage requirements, especially if they operate in a highly competitive market with high wages.
  • Compliance with LCA: Before submitting an H1B petition, employers must file a Labor Condition Application (LCA) with the Department of Labor (DOL). The LCA includes information such as the employee's wage and working conditions. To avoid legal issues, startups should ensure that they are fully compliant with LCA regulations.
  • Dependent Status: H1B visa holders may bring their spouse and unmarried children under the age of 21 as dependents to the United States. Dependents, on the other hand, may not have the same work authorization as the primary visa holder, which can be difficult for families who rely on both incomes.
  • Visa Quotas and Lottery System: Each year, the number of H1B visas available is limited, and demand frequently exceeds supply. This means that USCIS uses a lottery system to select petitions for processing at random. Due to limited availability and high competition, startups may face difficulties in obtaining H1B visas for their employees.

Understanding these common issues can assist startups in more effectively navigating the H1B visa process and avoiding potential legal and financial consequences. Seeking the counsel of an experienced immigration attorney can also help to ensure that all H1B visa regulations are followed.

Key Takeaways

The H1B visa process can be complex and overwhelming for startups, but with proper understanding and preparation, startups can successfully navigate the process. Working with an experienced immigration attorney, such as the team at Scale LLP, is critical to ensuring that you have the right guidance and support throughout the process.

Startup founders can benefit from Alfred and the team at Scale LLP's expertise through the Levy x Scale partnership. The Lunch and Learn event provided valuable insights into the H1B visa process, including eligibility requirements, common issues, and success tips.

As a startup founder, you must prioritize the needs of your team and invest in the talent that will help your company grow. Understanding the H1B visa process and collaborating with the right partners can help you pave the way to success for both your team and your business.

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At Levy, we help early-stage founders streamline and automate regulatory and legal ops, HR, and finance so you can focus on what matters most — your business.

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Note: Our content is for general information purposes only. Levy does not provide legal, accounting, or certified expert advice. Consult a lawyer, CPA, or other professional for such services.

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