Startups have special concerns, no matter which visa category they are trying to access.

In regard to H-1B visas, financing and the ability to pay the fair wage is one important issue. Not only must the startup offer the fair wage, but it must prove it has the ability to pay. Another is that USCIS is concerned with making sure that there is enough specialty occupation work; they reject the idea that rolling up your sleeves and doing everything that is needed to get startups up and running is an appropriate use of H-1B. It is necessary to prove that a specialist is needed and that there is enough specialty work to do. Job titles and duties are also of particular concern; the title of CEO is not considered a specialty occupation that requires a specialized degree.

For H-1B and O-1 petitions, startups have a special burden of proving that an employer-employee relationship exists. USCIS looks closely at the right to control the foreign national’s daily work and employment. Through our extensive experience with startups, we have been very successful in helping founders who own a majority of the company to prove that that there is a valid employer-employee relationship.