Many startups hire engineers or other employees that are not US citizens, and that usually makes startups deal with visa issues for their employees. Among several work visas for temporary foreign workers, H-1B visa in the Specialty Occupation classification is the most common one. Today, let’s talk about how to get an H-1B visa and what mistakes to avoid.

Although it looks like the H-1B visa is issued to an individual, the petitioner is not the employee but the employer, i.e. the company, and the employee is called the beneficiary of the petition. Therefore, when USCIS reviews an H-1B application, they not only look at the qualifications of the employee but the qualifications of the employer.

What Makes A Company A Qualified Employer?

A common misunderstanding is that as long as the employer is an entity, it will satisfy the requirements automatically. Unfortunately, USCIS has a higher standard than this. They may request many confidential documents of the company in addition to the formation documents. If you only submit the Articles of Incorporation and an EIN assignment letter from IRS, you will very likely to receive a Request for Evidence (RFE), because USCIS also wants to know the financial condition of the company, and whether the company is doing business.

A newly established company will need to provide more information than companies with H-1B filing history, because USCIS does not have any information about the new company in their system, while companies with case approval history has showed certain credentials to the USCIS officer. Startups are usually newly established entities, thus, along with the basic formation documents, the employer needs to submit tax returns (if any), financial statements, bank statements, business contracts, office leases (even the floor plan) and rent payment, etc. If the company is too new and none of these documents are available, at least submit the bank statements showing the company has enough funds to operate and hire employees. If the company has a business plan, that would also be helpful to submit, as the company usually seeks to demonstrate the intent to employ the beneficiary for a period of 3 years.

Salary is another key element. There are four levels of salary for each occupation. Before 2016, most companies provided entry-level (the lowest level) salary for fresh graduates. However, entry-level salary has invited a lot more RFEs in the past four years due to the new immigration policies. Therefore, if beneficiaries can negotiate a level-2 or higher salary with the companies, their cases are more likely to get approved.

What Makes A Beneficiary A Qualified Beneficiary?

When it comes to Specialty Occupation, USCIS usually evaluates whether the beneficiary satisfies one of the following qualifying criteria:

  1. A bachelor’s or higher degree or its equivalent is normally the minimum requirement for the particular position;
  2. The degree requirement is common for the position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor’s degree in a field related to the position;
  3. The employer normally requires a degree or its equivalent for the position; or
  4. The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree (For more information, see 8 CFR section 214.2(h)(4)(iii)(A)).

The offered position also needs to be related to the major of the beneficiary. If the beneficiary studied major A but wants to apply for a job in major B, it is unlikely that USCIS will approve the case, unless the beneficiary already has certain years of work experience or specialized training in major B prior to the application. Normally, three years of specialized training and/or progressively responsible work experience is equal to one year of college education.

Prior status in the US is also important. Any prior unauthorized overstay in the US, or even the possibility of overstay will affect the H-1B application, so keep track of your status all the time and do not let overstay ruin your case.

Other than the above-mentioned, there are many other important details you need to pay attention to when actually preparing for the application, thus consulting an experienced immigration attorney before the application would be extremely helpful and potentially save you more money and time on the application.