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I'm starting a new company. What do i need to have in order…

I'm starting a new company...
I'm starting a new company. What do i need to have in order to hire an H1B worker?Thanks
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3/16/2018
KLAW
KLAW, Lawyer
Category: Legal
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Experience: I have over 20 years of experience in commercial real estate law, finance, consumer credit, landlord tenant, and business law.
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Hello and welcome to Just Answer. No attorney-client relationship or privilege is formed by speaking to an expert on this site, the answers are for general information. By continuing, you confirm that you understand and agree to these terms.

A little background. An H-1B visa is the most common way for employers to sponsor professional workers in the U.S. In order to qualify for sponsorship, the employee must hold a position that requires at least a bachelor’s degree or equivalent experience in the field. Once approved, an H-1B visa allows employees to stay and work in the U.S. legally for up to three years. After those three years, the visa can be renewed for up to six year.

That said, a potential employer, the company must file the petition for the visa on behalf of the employee, who is not allowed to self-petition, and cannot petition more than six months before new employees’ actual start date.

Every company, regardless of size must petition for one of the only 85,000 H-1B visas made available every April 1 by USCIS. Note that 20,000 H-1B visas are reserved for workers with advanced degrees (a master’s degree or above).

Before filing an initial petition, your company must file a Labor Condition Application (LCA) with the U.S. Department of Labor. The LCA is a series of statements that attest to the fact that hiring the H-1B employee will not adversely affect any U.S. citizen workers. This includes the following statements:

· the employee will be paid the average wage for the role

· the employee will receive the same benefits as others in the role

· the employee will not negatively affect the working conditions of other employees

· there is no active labor dispute or work stoppage in place at the time of hiring the employee

Within 24 hours of filing, the LCA must be made available in a Public Access File to any member of the public who requests it, meaning the H-1B employee’s wage is obtainable by anyone.

For startups like yourself, there are many difficulties associated with obtaining an H-1B visa for a potential employee. After the LCA is filed, things can start to get tricky.

In order for an H-1B visa to be approved, the USCIS must make a determination that a company is properly established and has the cash flow necessary to provide the H-1B employee the average wage for the role as established in the LCA. While this is normally not a problem for large corporations, early-stage startups like yours, are often not yet very profitable, and for a startup employer to sponsor an H-1B visa, they must be able to show evidence of financial stability.

Startups usually achieve this by filing information about any funding rounds, but other evidence to prove viability may also be necessary. Other forms of proof startups should consider includes a business plan, employee contracts and/ or leases for office space. An annual report or U.S. tax return may also help.

I hope this helps.

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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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