By: Melissa Nolan
There is often a perception among companies looking to hire the best possible employees that start-up companies and established but small companies are prohibited from sponsoring a foreign worker for a visa. That perception is not necessarily accurate; however, particularly under the current administration, United States Citizenship and Immigration Services (USCIS) seems predisposed to deny an application from a start-up or a small company. Therefore, these companies must be particularly diligent in preparing a petition to sponsor a foreign worker for employment.
The primary consideration with respect to a small or a start-up sponsoring a foreign worker is that USCIS will want substantial, objective 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 company 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. USCIS requires independent, objective evidence, not simply statements from the company. 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); I-9 employment verification documents for current employees; 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 the foreign worker 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. In addition to the paystubs and employment verification for existence, the company should also submit an organizational chart for the company and detailed job descriptions for each employee. For both start-ups and small companies, a detailed business plan would also be helpful, as evidence the company has a plan for future growth that will support the employment of the foreign worker.
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 and small companies to hire the best available workers, some of whom may be foreign. However, with appropriate advice and planning, even a start-up or a small 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 or small company is considering hiring a foreign worker, contact the immigration department at Paule, Camazine and Blumenthal to discuss your options.