Can My Startup Sponsor A H-1B Visa?

If you’re looking to move to the U.S. to launch a startup, you may be wondering if your U.S. startup could sponsor you for a H-1B work visa to come to the U.S.. Beyond the numerical difficulties of obtaining a H-1B visa — the U.S. only issues 65,000 H-1B visas, plus an additional 20,000 for holders of advanced degrees, per year, and applications typically outnumber available visas by 3 to 1 — startups may have other logistical difficulties sponsoring their foreign founders for a H-1B visa.

One of the major requirements for a H-1B visa is that the sponsoring employer must be able to hire, pay, supervise, and fire the sponsored employee. This means it is pretty much impossible for a startup whose foreign founder is the sole owner to sponsor, though a startup with other founders or employees can meet this requirement, though with some difficulty. As long as there are other founders or employees who can supervise the work of the foreign founder, and fire him or her if performance is deficient, then it may be possible to meet the requirement. However, the startup will need to demonstrate the startup’s ability to supervise and fire the founder through supporting documentation, such as business plans, corporate bylaws, operating or founder/shareholder agreements, or employment contracts.

Additionally, the startup will need to demonstrate through supporting documentation that it has sufficient capital to pay the sponsored founder’s salary. The H-1B visa requires that a sponsored employee be paid the higher of either the actual wage (the wage paid to another employee in a similar position in the organization), or the prevailing wage in the overall industry. Aside from establishing the prevailing wage for a startup, many startups may not have sufficient capital to demonstrate to the government’s satisfaction that it can afford the founder’s salary.

Finally, the sponsored founder will need to comply with other requirements of the visa, including having job responsibilities constituting a “specialty occupation”, along with having at least a bachelor’s degree or its equivalent in the field. The H-1B application is also quite expensive with no guarantee of success, including both application fees and legal fees for an immigration attorney to help you thorough the process. In any event, if a startup is trying to bring a foreign founder to the U.S., it should consult with an immigration attorney who may be able to identify other visas for which the founder may qualify.

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