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Video - H-1B

Does your Company Qualify to Petition for H 1B Employees?

By November 28, 2022May 16th, 2024No Comments

Transcript: Does your company qualify to petition for H-1B employees?

Hi, everyone. I’m attorney Hashim Jeelani, principal at Jeelani Law Firm. Over the last 10 years, Jeelani Law Firm has successfully filed thousands of immigration cases with immigration agencies throughout the United States and overseas.

So what qualifications does a company have to meet to petition for an H-1B employee? This is a very common question we get from startup organizations, and early stage companies. Usually, companies are worried that they may not have been in business long enough, that they do not generate the required revenue or profit, or that they don’t have enough existing employees. The good news for many of our startup or early stage clients is that there are no minimum requirements as to years in business, revenue, or profit. Nor are there any minimum employee requirements. In fact, we’ve successfully represented companies in the H-1B process that are even pre-revenue and others with only one existing employee. So if there are no minimum revenue requirements, no minimum years in business requirements, nor are there any minimum number of employee requirements, what are the requirements?

Number one: you must have a legally established business. Meaning, you must be legally authorized by the state or city and any other regulating agency, to do the business you were doing. Number two: the position offered must be one that requires at minimum a bachelor’s degree and a specialty occupation. Number three: the employee you’re sponsoring must have a bachelor’s degree at minimum, specifically in the specialty occupation of the position. Number four: the H-1B position must be viable.

How does USCIS determine viability? A viability determination by USCIS is an assessment of whether the position is real or not. If a company does not have enough business or clients to give work to H-1B employee, then the position is not viable. This is where revenue, years in business, number of employees, among other factors, are considered. Again, I want to emphasize there are no minimum requirements as to these factors. They are considered in the accumulative and among other factors. Put more simply, the two components of a viability determination are: number one, does the company have the ability to pay the H-1B employee, and number two, is there sufficient work for the H-1B?

How can you show the ability to pay? In their analysis, USCS wants to know that the company can afford to pay the H-1B employee’s salary, otherwise the position is not viable. This can be shown by sufficient existing revenue of the company from years past, or by presenting current contracts the company has with its clients, which will tend to prove the likelihood of the company generating sufficient revenue to pay the employee’s salary.

What if the company does not have sufficient revenue or any revenue? If the company does not have sufficient revenue or any revenue yet, they can show the ability to pay through sufficient capital funds. We recommend at least one year of the H-1B’s salary in the company’s bank account. Additionally, lines of credit or even funding commitments, have also been used by our clients that were pre-revenue at the time of filing.

How can you show sufficient work? A key analysis USCIS makes when considering the viability of the position is whether there is sufficient H-1B work for the employee to do for the business, otherwise the position is not considered viable. For a company that has significant revenues, has been in business for years. and has many employees, this would usually not be something that would be scrutinized. However, if you were a startup or a small organization, you could use current or future job orders, contracts for work if the position is in-house, or other documentation, to evidence that the H-1B employee will have H-1B work to do if they are approved.

If you have any questions specific to your case, or need more information, call our office to schedule a phone consultation with a senior attorney at Jeelani Law Firm. Thanks for watching this video. I’m attorney Hashim Jeelani. Don’t forget to click the like, subscribe, and bell buttons to be notified every time I upload a new video.

Jeelani Law Firm, PLC

JEELANI LAW FIRM, PLC is regarded as one of the top immigration law firms in the industry. We handle all immigration matters including family based adjustment of status/green card cases, citizenship filings, representation of businesses and employees when filing L1A/B Petitions, H1B petitions, and Permanent Labor petitions. Our firm also litigates immigration cases dealing with delayed adjudications as well as appellate matters before the U.S. Federal Courts, U.S. Immigration Courts, USCIS and the BIA. Given the complex nature of immigration law, inexperience can lead to many mistakes which may result in delays, denials, and loss of filing fees and valuable time. Contact our office and we will take care of the rest.