Navigating U.S. Employment Visas at Your Startup

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The technology industry today is multinational and attracts talent from across the globe. When you’re hiring global talent you want to consider employment visas for foreign nationals working in the US. 

Startups should work with immigration professionals or firms that specialize when preparing visa applications. However, this post gives information to understand the process to acquire the most popular visa type for technology workers—the H1-B—in addition to offering an overview of other visa types. 

What is the H-1B Visa? 

The H-1B program allows U.S. companies to temporarily employ international workers in occupations that require either the theoretical and practical application of highly specialized knowledge and a bachelor’s degree (or equivalent) or higher in the specific specialty. In the startup world, this visa is particularly suited for engineers and data scientists. H1B is a three-year visa and can be up to six years if extensions are approved. 

Some of the advantages of the H1-B Visa include:

·      Holders may carry their visa from one employer to another during their stay

·      Employees may work part-time or perform work for multiple companies at once

·      H-1B visas are open to nationals of any country

Some of the disadvantages of the H1-B Visa include:

·      Lottery system with limited visas approved each year  

·      Inflexible application dates (only April 1st) and inflexible start dates (cannot start working until October 1st of that year)

Applying for an H-1B Visa

Step One: First, you will need to consider timing of an H1-B petition (known as “sponsoring”). The U.S. Citizenship and Immigration Services (USCIS) usually opens applications starting on or around April 1st. It is ideal to have your application ready and revised before that deadline, as the H1-B petition is a competitive process with typically far more applicants than visas granted. 

Step Two: The employer must file an H1-B petition with the USCIS. The petition is a two-step process consisting of:

a)   Obtaining a Labor Certification:

You must file an approved form ETA-9035, Labor Condition Application (LCA), and Form I-229 (Petition for a Nonimmigrant Worker). Employer must submit LCAs electronically via the DOLS iCERT Portal System.

b)   Filing the H1-B petition with USCIS

You should send the complete Form I-129 with a paid filing fee and other supporting documentation (including the approved LCA) to USCIS. Total fees often range from $3,000 to $5,000 - depending on company size and whether you choose to expedite. 

Documents required from the international employee for the H1B visa petition with the USCIS include:

·      Copy of a Passport

·      Copy of degrees /educational certificates / transcripts

·      Letter confirming current employment

·      Copy of previous employment /experience.

·      Copy of any certifications/achievements.

The below documents are not required but help improve the probability of receiving a H-1B Visa:

·      Most recent I-94. 

·      Copy of all I-20 forms employee has had (if applicable). 

·      Copies of any prior H1-B approval notices or J1 approval notices (if applicable). 

·      If the employee is currently under H1-B status with another company, a letter from that company

H1-B application results are released on a rolling basis after the application and may even be released after the October 1st start date. 

The H1-B is a great option for most startups. However, certain candidates who have exceptional abilities may also qualify for an O Visa although the application process is much more onerous. 

What is the O-1 Visa?

O-1 visa is for “persons with extraordinary ability” across a range of disciplines. For startups this may include sciences, education or business. The standard of review for an O-1 applicant is very high and requires more evidence of the candidate’s ability. 

The applicant may be considered for an O-1 visa if they can present evidence of qualification for at least three of eight requirements:

·      Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor

·      Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field

·      Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought

·      Original scientific, scholarly, or business-related contributions of major significance in the field

·      Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought

·      A high salary or other remuneration for services as evidenced by contracts or other reliable evidence

·      Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought

·      Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation

The O-1 visa can be advantageous because it can be applied for at any time and it comes with a three-year initial period with one-year extensions. However, it can be challenging to transfer to another employer and there are limited options for spouses and children to work in the United States. 

Other Visas to Consider

Two visa types that are definitely worth considering are the TN for Canadian or Mexican nationals, or the E-3 visa for Australian nationals. These are easier applications and have a greater likelihood of approval due to the favorable relationship the U.S. maintains with participating countries. 

TN Visa: This visa is only applicable to Canadians and Mexicans, who receive preferential treatment because of NAFTA, the North American Free Trade Agreement. It is modeled similar to the H1-B Visa, but has some key differences: it is granted for three years (but can continue to be renewed indefinitely), it can be applied for at the U.S. border (port of entry) and is usually granted immediately, and the documentation requirements and procedures are much less burdensome than those of the H1B Visa. TN visas for Mexican nationals are typically harder to obtain and must be applied for at a consulate or embassy. 

E-3 Visa: This Visa is for Australian nationals as well as their spouses and children. The principal applicant must be going to the U.S. to work in a specialty profession. A specialty profession is defined as one that requires, “a theoretical and practical application of a body of specialized knowledge; and the attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”

If your startup has operations in multiple countries already, the L-1 visa is a good way to transfer existing employees into the United States. The L-1 visa is an intracompany transfer visa that allows international employees from within your own organization to work in the United States. 

Requirements for sponsor company

L-1 visa sponsorship requires demonstrating a qualifying relationship with an international entity (branch, affiliate, subsidiary, etc.). You must also prove that it you are operating both in the United States and in the foreign country where you are transferring the employee from. 

L-1B Visa: Intracompany Transferee with Specialized Knowledge

An L-1B visa provides employees who have been working at an affiliate foreign entity for at least one year and who have a set of knowledge or skills that are specialized that are not readily available in the United States to transfer to their US affiliate. The longer the employee has worked at the foreign subsidiary, the stronger the petition will be. 

L-1A Intracompany Transferee Executive or Manager

An L-1A visa provides employees who have been working at an affiliate foreign entity for at least one year holding a managerial position and supervising the work of multiple employees to transfer to their US affiliate. This visa can also apply if you as a foreign company do not yet have an office established in the United States and wish to send an executive to do so. 

EB-5 Visa: While this is technically not a visa for employers, it is worth noting as it can be an effective, albeit expensive, way to obtain a Green Card (permanent residency). The EB-5 Visa allows immigrant investors to become lawful permanent residents (green card holders) by investing $1,000,000 to finance a business in the United States that will employ at least ten American workers. For eligibility, most immigrant investors invest in special government-created Targeted Employment Areas (TEAs) which are rural areas or geographies with high unemployment, thereby lowering investment requirement to $500,000. If you pursue this option you have the choice to invest individually or through a Regional Centers (RC) - approved intermediaries that connect international capital projects in need of funding. 

Brex Experience

At Brex, we are proud of the fact that over a third of our employees are foreign-born. We consider our willingness to apply for visas on behalf of foreign nationals an advantage in a competitive talent market. We have been successful in getting multiple visa types approved, although not without extraordinary effort. Where available, we focus on country-specific visa types, but have learned that we need to be flexible and look at each candidate’s circumstances when making the decision that is best for them and Brex. 

We have found Envoy Global to be a great partner in helping to simplify the process and manage the complexities of the visa application process.

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