H-1B Visa Requirements
Any US company can sponsor an H-1B visa if the following criteria are met:
- You must have an employer-employee relationship with the petitioning U.S. employer.
- Your job must qualify as a specialty occupation by meeting one of the following criteria:
- A bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for the particular position;
- The degree requirement is common for this 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;
- The employer normally requires a degree or its equivalent for the position; or
- 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.
- Your job must be in a specialty occupation related to your field of study.
- You must be paid at least the actual or prevailing wage for your occupation, whichever is higher.
- H-1B visa number must be available at the time of filing the petition, unless the petition is exempt from numerical limits.
What is not required?
A lot of immigrants associated with start-ups frequently ask the following questions:
- Can any start-up sponsor an H1B? Yes. Any company, regardless of size, can sponsor an H-1B visa.
- Does the start-up have to have existed for a specific amount of time? No. This is not a requirement for a company to be eligible to sponsor an H-1B visa.
- Does it need a certain amount of funding? No. There is no funding requirement.
What if I'm a majority shareholder of the company?
This is an issue that frequently comes up with startups, especially a startup that you might have founded.
You'll notice that one of the core requirements to be eligible for the H-1B visa is that there is a valid employer-employee relationship with the petitioning U.S. Employer. Typically, when the petitioner is also a majority owner of the company there is no real employer-employee relationship.
Therefore, an individual cannot have their H-1B Visa sponsored by a company that they own a majority of shares in.
What is the "minimum prevailing wage"?
To be eligible for the H-1B visa, the company needs to pay the "minimum prevailing wage" to the employee. This can often be prohibitive to startups, as it is more than they are able or willing to pay.
To view the wage database and estimate the prevailing wage that may be required for the envisioned position, click here.
Are there other visa options for startup employees?
Many startups and startup employees will often choose to use the J1, O1, or L1 visas if these options are available to them. However, the selection of which visa to pursue is highly dependent on the situation of the company and/or immigrant the company is looking to sponsor a visa for.