On Sep 16 2019 by Natalia Gouz

Innovative Win: Startup Company Founder Receives H-1B Without RFE

Employment-based immigration lawyers are working harder than ever to obtain visas for foreign nationals to meet their immigration and career goals in the U.S. – which is becoming an increasingly long and frustrating process. For that reason, Klasko attorneys work to provide creative and innovative immigration solutions for foreign nationals hoping to work and live in the United States, and for the U.S. companies that rely on their skills. 

Below is a creative solution crafted for an entrepreneurial foreign national that resulted in a successful H-1B petition filed by their startup company. 

Case Overview

  • The company was a startup in the financial services industry 
  • Worksite locations included shared office space and remote office location.
  • The company had three employees: the sponsored foreign national, a part-time worker, and an intern. 
  • At the time, the foreign national owned over 95% of the company, making it problematic for an H-1B visa petition. 
  • The company was less than a year old prior to the H-1B petition filing and had limited operating capital.
  • The position was an analyst role and the degree was in Business Administration, which USCIS often views as too broad to qualify as a specialty occupation.

An H-1B visa category allows U.S. companies to employ foreign workers temporarily in specialty occupations. H-1Bs are commonly associated with large, established businesses where there is usually a greater need for specialized knowledge to perform specific professional roles. It is a dual intent visa, meaning that it is temporary (approved for three years, extendable to six), however the foreign national may have intent to apply for lawful permanent residency (green card). 

Since the foreign national owned the greater majority interest in the company, the separation between the employer company and employee had to be established in order to file for an H-1B.  The Klasko client team worked with the foreign national and the company’s corporate attorneys to restructure the company and establish a Board of Directors and an Employment Committee to control the foreign national’s employment. The team also coordinated with a business plan writer to provide a business description, a detailed staffing plan, and the company’s financial projections. 

The firm also showed examples of the company’s active business operations through collaborations with marketing and networking service providers, which demonstrated how a startup with limited resources and staff can actively pursue plans to achieve its business goals and financial projections. The firm also outlined the growth projections for the three-year period of the H-1B. Additionally, Klasko worked with the foreign national to establish a clear nexus between the degree program and the position. 

After restructuring the business to meet USCIS standards to be recognized as an employer for the H-1B classification and crafting a strong job description, the H-1B petition was granted without receiving a single Request for Evidence (RFE), which is very common for startup companies in similar scenarios as well as positions requiring a Business Administration degree. This complex case illustrates the need for creativity and innovation to find success in today’s tricky immigration environment. Startups and small businesses owned by entrepreneurial foreign nationals present unique challenges that cannot be solved without some out-of-the-box brainstorming and collaboration. This case is an example of how Klasko works with foreigners who come to the U.S. to obtain degrees in U.S. business schools in order to enable them to launch businesses and contribute to the U.S. economy in a particularly challenging immigration climate. 

For more information on this particular case, or if you have a complex business immigration problem, please contact one of the firm’s employment-based immigration attorneys or an investment immigration attorney.