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Startup Companies and H-1B Petitions
February 14, 2013
In view of the seemingly stricter adjudication by the US Citizenship and Immigration Services (USCIS) in recent times, we are often asked whether it is advisable for startup companies to file H-1B petitions.   Our experience has been that the petitioning entity’s age itself is not a major issue if all other critical elements can be established about the legitimacy of the H-1B petition.

To be eligible to file an H1B petition, the petitioner has to be a US person or entity, i.e., an individual, partnership, corporation, or an organization that qualifies as such an entity. US branches, subsidiaries, etc., of an overseas company can also file H1B petitions.

Next, the job offered should be a “specialty occupation”, namely one that normally requires the “theoretical and practical application of a body of specialized knowledge along with at least a bachelor's degree or its equivalent.” Most Information Technology jobs, such as Computer Programmers, Software Developers, Systems Analysts, Database Administrators, and Network Administrators, fall into this category.  Equally important is that the potential employee is qualified for the offered job.  As stated above, a specialty occupation is one that needs a US bachelor’s degree or equivalent as the entry level requirement. Thus, there are two standards to be met as far the job is concerned: (i) it should require a bachelor’s degree, and, (ii) the beneficiary should have the required degree or its US or foreign equivalent.

Our clients ask us whether the petitions can be prepared in such a way that a Request for Evidence (RFE) can be prevented.   While there is no sure way to prevent an RFE, being proactive and defensive in the preparation of documentation can help a lot.  The USCIS is alerted about the ‘startup’ nature of the petitioner by information such as the year established, current number of employees, gross income, and net income.  In most startup cases, the year established would be recent, with corresponding small number of employees and low income levels.  Sometimes, there would be no income at all to report, and the petitioner gives “projected” or “estimated” numbers.  These elements would make the USICS curious about the viability of such entities, resulting in an RFE. 

RFEs are aimed at ascertaining the bona fides of the petitioner as a legitimate business entity in the business of providing services as described in the petition, to see whether the company has enough work for the H-1B employee and has enough money to pay the employee.  RFEs usually ask for documents such as lease agreement, floor plans and photographs of business premises, contract between the petitioner and the beneficiary, itinerary of the beneficiary (if the employment is to take place at more than one location), contractual agreements between the petitioner and their clients, financial documents (including tax documents – federal, state, and quarterly payroll returns), payroll records, past history of H1B petitions, and so on.

The employer, by themselves or with the help of an immigration attorney, should be able to prepare this extensive documentation and submit before the deadline of the RFE.

Another frequently-asked question is whether a Premium Processing request will prevent an RFE or invite it.  Our experience has been that a Premium Processing request does not decide whether or not an RFE is issued, it merely makes sure that the petition gets adjudicated sooner.  But the adjudication standards are the same, Premium Processing or not.

Our office has handled hundreds of H-1B petitions on behalf of start-up companies in the information technology field.  From our experience, we can confidently say that it is possible for startup companies to get approvals on H-1B petitions if appropriate planning and preparation go into such petitions.

6 Comment(s)

Startup1 said...

Nice article!
February 14, 2013

vishnu madhavi said...

thanks a lot for your post,its very useful for those who are going to file H1B visa and also for recruiters
February 14, 2013

Mohammed Ismail said...

Thanks a lot for the post :-)
February 28, 2013

Noore Alam said...

Thanks a lot for this article. This is very helpful for the petitioners as well as the beneficiary....
March 4, 2013

Waqas Ahmad said...

Hi, I am going to apply for H1B in 2013, my employer submit my peitition by using my Education Documents Name which is Waqas Ahmad ( AHMAD is also on my birth certificate ) but i notice that in my passport my Last name is AHMED. The only difference is in my Last Name ( in passport its E instead of A ). What will you suggest me ? I am so tense please help me out and tell a solution. Thanks in advance
March 11, 2013

Chandran said...

Hi Mohsin,Ultimately it is the US consulate who deiremtnes whether you get a US work visa like the H1B visa and it ultimately up to the Immigration and Customs officer at the border (usually at the airport) whether even if you have a valid visa whether you are allowed in to the US. Ultimately if your job and company is legitimate and you have no negative things in your history, then you more often than not should have no problems getting a visa and entering the US.Good Luck,Cj
April 1, 2013

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