Are Start-Up Companies Prohibited from Sponsoring Foreign Workers for Employment?

By January 20, 2016Immigration

Paule, Camazine & Blumenthal, P.C. posted in Immigration on Wednesday, January 20, 2016.

By: Peter Gianino and Melissa Nolan

Occasionally, new companies are formed because of the expectation that one or more key employees will be part of the new business. At times, the key employee is not a U.S. citizen. Since success of the new enterprise might be dependent on the key employee’s ability to stay and work in the U.S., it is particularly important to understand the challenges and opportunities inherent in the process of sponsoring non-U.S. citizens for valid immigration status.

There is a perception that a start-up company is prohibited from sponsoring a foreign worker for a visa, or that United States Citizenship and Immigration Services (USCIS) is predisposed to deny an application from a start-up. Those perceptions are not necessarily accurate; however, start-ups should be particularly diligent in preparing a petition to sponsor a foreign worker for employment.

The primary consideration with respect to a start-up sponsoring a foreign worker is that USCIS will want evidence that the company is bona fide and that it has the financial capability and potential for growth to support the foreign worker in the occupation that is being reported on the petition. USCIS wants to see that the start-up is a real operating entity, and not just a company that was created on paper for the purpose of allowing a foreign national to immigrate to the U.S. Documents that could be submitted as evidence include: corporate organizational records; contracts already entered into; a lease for office space; pictures of the office and tangible assets of the company; paystubs and filed quarterly wage reports for current employees (if any have been filed yet); company bank account statements; and financial statements (if any are available) for the company.

USCIS wants to ensure that the prospective employee will have the support of other personnel so that he or she is able to perform the job duties described in the petition. For example, when a start-up files a petition to obtain H-1B status, USCIS tends to examine whether the worker will be doing only “specialized occupation” duties, which are duties for which a bachelor’s degree in a specific field is required. USCIS’s assumption is that because it is a new company, the prospective employee will be required to perform administrative tasks until the company is up and running. It is important to show there are other workers already employed who will be doing the administrative tasks. Documentation that could be submitted as evidence might include: organizational chart for the company; detailed job descriptions for each employee; paystubs for each worker; and filed quarterly wage reports (if any have been filed yet).

The current administration has expressed its interest in encouraging investment and entrepreneurship in the U.S., and the start-up industry is an important part of the U.S. economy. Despite this, USCIS has not historically made it easy for start-up companies to hire the best available workers, some of whom may be foreign. However, with appropriate advice and planning, even a start-up company can convince USCIS that it is a bona fide entity in need of sponsoring a foreign worker for immigration status.

If your start-up company is considering hiring a foreign worker, contact the immigration attorneys at Paule, Camazine and Blumenthal to discuss your options.

Disclaimer

Peter A. Gianino

Peter A. Gianino

A successful litigator, Pete Gianino practices primarily in immigration and civil litigation. He represents clients from numerous countries and is developing a reputation trying cases in the most challenging areas of the law. Pete has been interviewed on Fox 2 television and has been quoted in the St. Louis Post Dispatch about immigration issues.