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Dear Sophie,
We’re a pre-seed startup thinking about sponsoring an early employee’s H-1B visa to stay in the U.S. and work for us.
How does the process work?
— Seeking in San Mateo
Image Credits: Joanna Buniak / Sophie Alcorn
TLDR: No, your startup does not need to work with an immigration attorney to apply for an H-1B visa for your employee—your startup can submit the filing and pay the fees directly to U.S. Citizenship and Immigration Services (USCIS). But I highly recommend consulting an immigration attorney, particularly since USCIS tends to heavily scrutinize startups. An attorney can help you through the process, avoid missteps, and submit a strong visa application on behalf of your employee while staying within your budget—possibly even saving you time and money in the long run. Get our handout, All About H-1Bs, and subscribe to our newsletter for the latest immigration news and our upcoming informational webinars.
Full Ask Sophie™ article:
Dear Seeking,
Thank you for giving immigration peace of mind to your employee by planning now for H-1B sponsorship. This step means a lot to professionals early in their careers, many of whom paid full tuition for their U.S. bachelor’s and master’s degrees in order to have this chance.
Your startup can certainly register your employee for the H-1B lottery sometime in Q1 2023, but the government has not yet released the specific time window. Listen to my chat with my colleague, immigration attorney Lynda Hagerty, for tips on prepping for the upcoming H-1B lottery season. If your future employee is selected in the lottery, your startup can prepare, submit, and pay the required fees to U.S Citizenship and Immigration Services (USCIS) for an H-1B filing.
I highly recommend working with an experienced startup immigration attorney to support your employee’s process, particularly since USCIS tends to scrutinize early-stage companies more. An attorney can help you through the process, avoid missteps, and submit a strong visa application on behalf of your employee while staying within your budget—possibly even saving you time and money in the long run, helping you preserve your startup’s runway.
Consider your service level
Most immigration attorneys charge flat fees for their services, but fees, service level, responsiveness, and amount of counseling and guidance can vary significantly, so look for a law firm that meets your startup’s needs. Check out my podcast on how to save money on the immigration process for more tips and tricks. It’s also really important to find an attorney you feel comfortable with; having a good rapport with your attorney will help make the process more efficient.
Never too early to start prepping
You can never start too early in assembling the documents you will need to submit. Your startup will need to be incorporated and receive its tax ID number from the I.R.S. to prove that your startup is capable of sponsoring an individual for an H-1B. That needs to be done before your company submits a Labor Condition Application (LCA), which is also sent to the Labor Department and cannot be submitted more than six months before your employee will begin working on an H-1B. An approved LCA must be submitted with your H-1B petition to USCIS. In addition to your startup’s tax ID, some basics that your startup will need include:
- A job description for your beneficiary (the individual your company is sponsoring) and the minimum requirements for the position.
- A job offer letter to the H-1B candidate, including job title, detailed duties, benefits, salary, and start date. The earliest start date on an H-1B if selected in the lottery in 2023 is Oct. 1, 2023, which is the start of the new federal fiscal year.
- Your company’s articles of incorporation, term sheet, and cap tables if your startup formed recently.
- Your company’s bank statements, tax returns, and other financial documents that show your company can pay the prevailing wage for the H-1B candidate’s position and location.
- Marketing materials, company reports, pitch deck, business plan, and screenshots of the company website that shows your startup is operating.
- To assess any prospective issues that might come up as red flags in the case.
Your H-1B candidate will need:
- A current resume.
- Diplomas, certificates, and transcripts.
- Current and past immigration documents, such as an I-20, I-797, and DS-2019.
- Translations of any documents not in English along with a certified translation document.
H-1B lottery registration nitty gritty
You can register your employee online for the H-1B lottery in March 2023. USCIS’ fee for registering an employee in the lottery is only $10! But only register your employee once in the lottery. Individuals who are registered by the same company more than once are automatically disqualified.
If you don’t already have a USCIS account, your attorney will guide you to first create one as a “registrant” or sponsoring company, regardless of whether an attorney or accredited presentative will register your H-1B candidate. Check out the resources offered by USCIS for the H-1B registration process:
- H-1B Electronic Registration Process page: It hasn’t yet been updated with 2023 (fiscal year 2024) H-1B lottery registration info, but it’s still helpful.
- H-1B Electronic Registration Process video that shows the steps you need to take and what the online system looks like.
Your attorney will link to your company profile through the portal and pay the $10 registration fee by entering a credit card, debit card, checking or savings account directly into the H-1B registration portal.
What are the odds
It’s uncertain whether the wave of layoffs at tech companies, both big and small, will mean your H-1B candidate will have a better chance of being selected in the lottery or if chances remain the same as companies take the opportunity to scoop up laid-off talent. Either way, you should be prepared with a backup plan in case your candidate isn’t selected in the lottery.
Suppose your employee doesn’t get selected in the lottery in March. You can enter your employee in the lottery the following year—as long as that individual can remain in legal immigration status until the 2024 H-1B lottery.
Submitting a strong H-1B
You will be notified by April 1, 2023, whether your employee has been selected in the 2023 lottery. If selected, you will have until June 30, 2023, to submit an H-1B petition to USCIS. For tips for filing the H-1B petition, listen to my podcasts on “Selected or Not Selected in the H-1B Lottery, Now What?,” “Your Startup’s First H-1B” and “What Makes a Strong H-1B Petition.”
I often recommend paying for premium processing for your H-1B petition, depending on the beneficiary’s start date and when her or his current immigration status expires. With premium processing, which is an optional service for a $2,500 fee, USCIS guarantees it will decide on a case within 15 days. Premium processing also has the added benefit that USCIS will communicate via email.
Some fear that premium processing means a higher risk of receiving an RFE or denial, which I can officially debunk. In fact, premium processing ensures better communication with USCIS, which is valuable if you’re filing a complex H-1B case. Also, if your case is denied, you can request a supervisory review if you paid for premium processing.
All the best to you in the H-1B process and in scaling your startup!
— Sophie
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