What Is The H1B Visa?
The H1B visa is offered by employers to sponsor high-skilled or professional workers in the United States. To qualify for a H1B visa the employee should hold a position in the company that requires a bachelor’s degree or an equivalent amount of experience in the specified field. The H1B visa allows the employee to stay in the United States for up to three years legally, this visa can be renewed for a total of six years.
Petitioning For A H1B Visa
All petitions for H1B visas need to be submitted by the employer, as the employee is not allowed to self-petition for this type of visa. The US Citizenship and Immigration Service issues 65,000 H1B visas on the 1st of April every year, 6,800 of these visa are set aside, as per trade agreements, for immigrants from Singapore and Chile, another 20,000 of these visas are set aside for workers who have completed advanced degrees, such as a Master’s programme. As there are more applicants than visas available H1B visas are allotted through an annual lottery. Before petitioning for a H1B visa the employer will need to file a Labour Condition Application (LCA) with the US Department of Labour. The LCA attests to the fact that hiring the H1B worker in the US will not adversely affect the employment of any US citizen. The LCA includes states like:
- H-1B non-immigrants will be paid at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question or the prevailing wage level for the occupation in the area of employment, whichever is higher.
- The employment of H-1B non-immigrants will not adversely affect the working conditions of workers similarly employed in the area of intended employment.
- On the date this application is signed and submitted, there is not a strike, lockout or work stoppage in the course of a labour dispute in the occupation in which H-1B non-immigrants will be employed at the place of employment.
Once the LCA has been filed it will need to be made available to any member of the public who requests it.
Challenges Faced By Start-Ups
Once the LCA is filed and the petition for the H1B visa is submitted, the USCIS will need to determine that the company is established and has a cash flow that can provide the employee with the prevailing wage as established in the LCA. For a start-up to sponsor a H1B visa it will need to show proof of income, usually in the form of venture capital. The legitimacy of a start-up is also determined by looking into the business plan, employee contracts, and the leases for its office space. The annual report or US tax returns are helpful documents to submit to check the legitimacy of the business during the H1B application process. The processing fee for a H1B visa can amount to nearly $4,000, this does not include the attorney’s fee.
H1B Visas For Founding Members Of A Start-Up
If a co-founder of a start-up wishes to apply for a H1B visa to work in the US, he/she will need to show an employer-employee relationship to the USCIS. Under such circumstances the beneficiary will need to provide evidence of a separate Board of Directors which has the ability to fire, supervise, pay or control the beneficiary’s employment.