Due to the economic downturn, I get many emails from current H1B visa holders that are interested in starting their own companies. They are either worried about loosing the current H1B job or are in the process of being laid off. It can be really difficult for start up and small companies to file for and get H-1B visas.
Last April many Immigration lawyers received very similar requests for evidence focusing on few very particular issues. USCIS were looking for small companies filing for H1B's or for job shop employers. Truly, if people are being hired outside the U.S. Normally USCIS will want you to prove the following:
1. Employer is capable of paying wages;
2. Employer has sufficient amount of work;
3. Employer is reliable company with proper staff, offices and equipment.
4. If providing consulting services, you are able to procure a letter from your end-client showing the terms of engagement including what the H-1B holder will do and who will supervise them - this request was consistent in all RFE's received in 2008.
Employers can win If they can:
- Demonstrate how they can pay wage - Obtain a line of Credit or a Business Loan.
I have advised people to try to get a line of credit from a bank. That works sort of like a credit card. Unless you use the money, you pay no interest on it. Contact any local bank for more details. It is difficult to put down exact numbers, but $200,000 line of credit is a good number. Please note, merely having money in the bank may not be sufficient. Also, those companies that are starting with a promised Venture Capital of more than $600,000 should be OK.
Office Lease and Pictures of the Office and Equipment
New compnaies working form home will always fail to obtain H1B visas. USCIS will see this as a too small of a business to become a growing employer. We always try to show that the company has a merit and is a real business.
Start up Companies taking over Green Cards
There is no law on this issue. The current thinking of USCIS appears to be that there is no problem in doing AC21and porting employees already in the process of the Green Card for a start up, as long as the job offered to the employee is similar to their labor cert job. In the past, USCIS had tried to question the start up on ability to pay wages. But Yates memo of May 2005 sealed that down stating that is not relevant.
Start up companies starting new green cards
This would be difficult because you have to demonstrate the ability to pay wages from the day you file the labor cert on to the time an employee actually receives the green card approval. This ability is usually shown through a profitable tax history. But if you are consistently paying an employee the wage he/she is supposed to be paid under the labor cert, you are in a good position to get your GC through.
Bottom line is that with careful planning, even small employers can succeed in filing for H1B visas and later proceed for Green Card filing. As long as the employees meet the minimum requirements for the H1B visa job, all the employer will need to do is demonstrate that his company actually could use that talent. Experienced immigration lawyers can help employers meet that standard. Start planning for the H1B season early this year.
