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H-1B Approval for a Small Company: Case Study

The H-1B visa is one of the most popular immigration visas for foreign professionals who seek employment in the United States. However, the H-1B visa is only available to professionals within a specialty occupation.An approved occupation requires a minimum of a bachelor’s degree. The H-1B is also limited by a cap of 85,000. This includes 20,000 of which are solely dedicated to individuals with a master’s degree or higher.

Though with all these restrictions, our law firm was able to receive H-1B visa approval for a business development specialist working for a small start-up company.

Our client was a foreign national who sought employment in an e-commerce start-up company that had only been incorporated in 2012.

The client’s case opens up complications due to three occurrences:

  • No prior company tax forms
  • No specific salary or employee records
  • The Marketing Research Analyst position is not typically considered a “specialty occupation”
  1. With no previous tax forms to predict future revenue growth, it was a complex case to process. The USCIS prefers to view documentation of the company’s history and progress over the years. This is conducted in order to confirm a company’s financial stability and success. Without financial proof, the employer was required to provide the most accurate projections possible in which we could present to USCIS.
  2. Specific salary records are important for an H-1B case, because the USCIS wants to determine if the company qualifies as a liable business entity. Since the company has not previously employed a Business Development Specialist, the USCIS questions if the company has made a bonafide offer of employment. There is technically no prior evidence of the company’s ability to pay the foreign national.
  3. A marketing research analyst position is not typically considered a H-1B “specialty occupation”. Generally, the positions that are granted H-1B status include: accountants, architects, dietitians, economists, engineers, lawyers, medical technologists, professors, physicians, teachers, and technical professionals.

 

How We Assisted Our Client:

While there were these challenges, our leading attorney, Shilpa Malik, was able to explain the case to the USCIS by providing evidence of how the position would qualify as a specialty occupation. Our law firm highlighted the nature of the employer’s business and the specific duties that the beneficiary would be performing as a business development specialist, which also requires a minimum of a bachelor’s degree in a related field. We submitted examples of similarly situated companies that often require a person to have a bachelor’s degree to qualify for the position. The challenge of the company being a start-up with less than 5 employees was met by proving that there was an existing bonafide employment opportunity and the beneficiary would be performing the specialized duties relating to the position.

If you are in a situation similar or if you are facing challenges regarding your H-1B petition through a start-up or a small company, please contact us for a consultation. Our experienced immigration attorneys are capable of helping clients with documentation, legal representation, and filing requests.

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