To sponsor or not to sponsor? Factors start-ups and small businesses should consider before sponsoring H1-B

Every employer tries to hire the best and brightest employees to join his business. Some scout the whole world to find individuals who are willing to come to the U.S. and invest their skills and talents in order to promote the growth of a business as well as the U.S. economy. These foreign skills and talents come at a high price. In addition to negotiating employee contracts and bonus structures, the employer must petition on behalf of the foreign employee for an H1-B visa.

Naturally, it is easier for larger corporations to sponsor an H1-B. Large corporations have funds set aside for a designated department within the company that handles all immigration issues or they retain an outside law firm. It could be more difficult for a start-up or a small business to sponsor H1-B, but it is not impossible- Here are some of the factors a start-up or small business H1-B petitioner should consider:

Numbers:

Important numbers any H1-B petitioner should consider:

  1. 04/01/2015– For Fiscal Year 2016, USCIS starts accepting H1-B applications on April 1, 2014.
  2. 10/01/2015- If an H1-B visa application is approved, the foreign employee can start working on October 1, 2015.
  3. 5- There is no deadline by which the petitioner must file the H1-B application. USCIS will continue to accept applications until the H1-B Cap is reached. However, in 2014, H1-B Visa quota was reached by April 7, 2014. That’s 5 business days from the day the H1-B application period began.
  4. 65,000- The H1-B Cap for Fiscal Year 2016.
  5. 20,000- The number of additional H1-B visas allocated specifically for foreign nationals who obtained a U.S. Master’s Degree or higher.
  6. $4,000- A start-up or small business H1-B Petitioner should allocate enough funds to pay for the fees associated with filing an H1-B Visa application. H1-B filing fees could amount to $4,000 (not including attorney fees)

Requirements:

Every H1-B Petitioner must satisfy the following requirements:

  1. The H1-B Petitioner must demonstrate that the business has enough funds to pay their prospective employee. USCIS determines the “fair market wage” by reviewing factors such as the title held by the employee in the company, location of the business, etc.
  2. The H1-B Petitioner must prove the business’s legitimacy. The employer will have to provide evidence, such as company’s business plan, employee contract, and/or purchase or lease of company’s office space, in order to prove that the business is legitimate.
  3. The H1-B Petitioner must demonstrate that an employer-employee relationship exists. Employers will have to prove that the company has an independent right to control the employment of the foreign national.

The “unofficial” filing period for H1-B Visa petitions is short. Large corporations have designated departments or law firms that handle the preparation and filing of H1-B applications. Start-ups or small businesses may not have the luxury of designating this work to someone else. If they wish to file H1-B Petition on behalf of a foreign employee, start-ups and small business should start preparing now by contacting an immigration attorney, gathering required documents, and allocating funds for filing fees.

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