The United States is a global hub for innovation and entrepreneurship, drawing talented individuals worldwide. For non-citizens, starting a company in the U.S. often involves navigating the country’s complex immigration system. Among the available options, the H-1B visa is popular for professionals looking to enter the U.S. business world.
This guide breaks down the H-1B visa process for entrepreneurs. It covers eligibility, self-sponsorship strategies, and alternative pathways to success. Whether you’re an aspiring founder or a professional ready to start your own business, this roadmap provides the tools to turn your vision into reality.
H-1B Visa Overview
The H-1B visa is a nonimmigrant visa that lets U.S. employers hire foreign workers temporarily. These jobs must require highly specialized knowledge.
Specialty Occupations
To qualify for the H-1B visa, the job must meet at least one of these requirements:
- A bachelor's degree or higher in a specific field is the minimum qualification.
- The degree requirement is standard in the industry or for the job.
- The job duties are so specialized that only someone with the right degree or expertise can do them.
Employer Sponsorship
The H-1B visa requires employer sponsorship. A U.S.-based employer must file a petition (Form I-129) with USCIS for the foreign worker. Employers must also prove that hiring the foreign worker will not harm wages or working conditions for U.S. workers.
Labor Condition Application (LCA)
Before filing the H-1B petition, employers must submit a Labor Condition Application (LCA) to the Department of Labor (DOL). The LCA confirms:
- The foreign worker will be paid at least the prevailing wage for the job.
- The working conditions will match those provided to U.S. workers in similar roles.
Annual Cap
H-1B visas are subject to an annual limit:
- 65,000 visas are available for general applicants.
- An extra 20,000 visas are available for those with advanced degrees from U.S. universities.
Certain employers, such as research institutions or nonprofits affiliated with universities, are exempt from this cap.
Validity and Extensions
The H-1B visa is initially valid for up to three years. It can be extended for another three years, totaling six years.
Dual Intent
The H-1B visa allows "dual intent." This means you can apply for a green card (permanent residency) while holding H-1B status.
Now that we know about H-1B, let us take a look at the basic requirements of an H-1B visa.
H-1B Visa Requirements
To qualify, applicants and their employers must meet specific eligibility criteria as outlined by the United States Citizenship and Immigration Services (USCIS).
Eligibility Criteria for Specialty Occupations
To qualify for a H-1B visa, the job must meet at least one of the following conditions:
- Degree Requirement: The position must require a bachelor’s degree or higher in a specific field relevant to the job duties.
- Industry Standards: A degree is typically required across the industry for similar roles.
- Specialized Knowledge: The job duties must be so complex and specialized that they can only be performed by an individual with a degree or equivalent specialized training and experience.
- Employer’s Requirement: The employer must demonstrate that the degree requirement is necessary for the role.
Educational Qualifications
Applicants must possess:
- At least a U.S. bachelor’s degree or an equivalent foreign degree in a field related to the position.
- Relevant work experience may substitute for education, typically calculated as three years of work experience for each year of missing college education.
Employer Sponsorship
H-1B applicants must be sponsored by a U.S.-based employer, which entails:
- Filing a Petition: The employer must submit Form I-129, Petition for a Nonimmigrant Worker, to USCIS on behalf of the prospective employee.
- Labor Condition Application (LCA): The employer must obtain an approved LCA from the Department of Labor, certifying that:some text
- The H-1B worker will be paid at least the prevailing wage for the job.
- The employment of the H-1B worker will not adversely affect the working conditions of U.S. workers.
Special Conditions and Considerations
- Multiple Employers: If an individual works for multiple employers, each employer must file a separate H-1B petition.
- Concurrent Employment: H-1B workers can work for multiple employers simultaneously, provided an approved petition covers each job.
- Transferability: An H-1B worker can change employers by having the new employer file a petition for the transfer.
Validity and Extensions
- The initial H-1B visa is valid for up to three years and can be extended for up to six years in total.
- Further extensions, based on pending green card applications, may be granted under specific circumstances.
Next, we are going to take a look at the roadmap to launch a startup on an H-1B visa.
Roadmap To Launching A Startup On An H-1B Visa
The following steps outline how to launch a startup while on a H-1B visa.
1. Understand the Legal Requirements
The H-1B visa mandates a clear employer-employee relationship. In the case of a startup, the company must have the authority to hire, supervise, and terminate the visa holder’s employment.
To satisfy this requirement:
- A legitimate board of directors or management team must be established.
- The board should have the power to oversee employment matters, including salary, job duties, and performance.
2. Establish the Business
Before a startup can sponsor an H-1B visa, it must be registered as a legitimate U.S. business entity. The process involves:
- Selecting a Business Structure: Options include LLCs, corporations, or partnerships.
- Registering the Business: Registration must occur in the state where the business will operate.
- Obtaining Required Licenses: Necessary local, state, and federal licenses must be acquired to comply with legal regulations.
3. Sponsor the H-1B Visa
Once the business is established, it can act as a sponsor for the H-1B visa if it meets the necessary criteria:
- File Form I-129: The startup must submit this petition to USCIS.
- Submit a Labor Condition Application (LCA): An approved LCA ensures compliance with wage and labor standards.
- Demonstrate Oversight: Evidence must be provided that the visa holder’s employment is supervised by an independent board or authority within the startup.
4. Prove Financial Stability
USCIS evaluates whether the startup can support the H-1B position financially. To demonstrate this:
- A comprehensive business plan should outline the startup’s revenue model and growth potential.
- Initial funding or investments should be secured to show the ability to meet salary obligations.
- Financial records, such as bank statements, tax filings, and investor agreements, must be maintained as evidence of stability and ability to pay the prevailing wage.
5. Explore Alternative Visa Options
If H-1B sponsorship through a startup is not feasible, other visa options may allow entrepreneurs to work in the United States:
- O-1 Visa: Designed for individuals with extraordinary ability in their field.
- EB-1A Extraordinary Ability: For individuals with sustained national or international acclaim in their field. This requires documented evidence of extraordinary ability but allows self-petitioning, meaning no employer sponsorship is needed.
- EB-2 National Interest Waiver (NIW): Available to entrepreneurs contributing to U.S. economic growth or innovation, allowing permanent residency without traditional employer sponsorship.
Now that we know about the roadmap for launching a startup, we will look at the legal framework for H-1B self-sponsorship.
Legal Framework For H-1B Self-Sponsorship
While the H-1B visa is traditionally tied to employment with an external sponsor, USCIS allows for self-sponsorship under specific legal conditions.
- Employer-Employee Relationship
To qualify for H-1B self-sponsorship, entrepreneurs must establish a legitimate employer-employee relationship with their own company. This relationship requires:
- An independent entity (e.g., a board of directors or other governance structure) that has the authority to supervise, hire, and potentially terminate the entrepreneur's employment.
- A clear distinction between the entrepreneur’s ownership role and their employment role within the company.
- Company Formation
Entrepreneurs must establish a U.S.-based business entity capable of acting as the H-1B sponsor. This includes:
- Registering the business as a legal entity (e.g., LLC, corporation).
- Obtaining an Employer Identification Number (EIN) from the Internal Revenue Service (IRS).
- Complying with state and federal regulations governing business operations.
- Labor Condition Application (LCA)
The startup must file an LCA with the Department of Labor (DOL) to certify:
- The position being offered meets the requirements of a specialty occupation.
- The H-1B worker will be paid at least the prevailing wage for the role.
- Employing the H-1B worker will not negatively affect the working conditions of U.S. workers.
- Financial Viability
USCIS requires evidence that the startup can financially sustain the H-1B worker’s employment. This includes:
- A business plan detailing the company’s revenue model and projected growth.
- Proof of funding or investments to support operations.
- Documentation of the company’s ability to pay the H-1B salary, such as bank statements and tax filings.
- Specialty Occupation Requirements
The role the entrepreneur holds within the company must qualify as a specialty occupation. Typically, this means the job requires:
- A bachelor's degree or higher in a field relevant to the position.
- Duties that involve specialized knowledge critical to the company’s operations.
Next we are going to look at the H-1B visa application strategy for startups.
H-1B Visa Application Strategy For Startups
Developing a strategic approach to the application process is essential for startups aiming to hire skilled talent through the H-1B visa program.
1. Understanding the H-1B Cap
The H-1B visa program operates under an annual numerical cap:
- Regular Cap: 65,000 visas are available for workers meeting the general H-1B eligibility requirements.
- Advanced Degree Exemption (Master’s Cap): An additional 20,000 visas are reserved for individuals with advanced degrees from U.S. institutions.
2. Early Preparation for Filing
Startups should begin preparing for the H-1B process well in advance of the filing period:
- Filing Timeline: The H-1B cap season opens in early March each year, with selected applicants notified by USCIS before April. Petitions for selected cases must be submitted promptly.
- Gather Required Documentation:some text
- Proof of the specialty occupation.
- Labor Condition Application (LCA) approval from the Department of Labor (DOL).
- Evidence of the applicant's qualifications (e.g., degree certificates, resumes).
3. Positioning the Startup for Compliance
Startups must demonstrate their ability to comply with H-1B requirements:
- Employer-Employee Relationship: Provide documentation showing the company’s authority to control the employee's work.
- Financial Viability: Show evidence that the company can pay the prevailing wage and sustain the role. This may include investor funding, bank statements, or revenue projections.
- Job Role as a Specialty Occupation: Clearly define the job description to align with H-1B specialty occupation criteria.
4. Developing a Robust Petition
An H-1B petition from a startup must stand out in a competitive landscape:
- Strong Job Description: Highlight the specialized nature of the role and its alignment with the candidate’s qualifications.
- Detailed Business Plan: Demonstrate how the role contributes to the startup's growth and long-term success.
- Supporting Evidence: Include letters of support, financial projections, and evidence of contracts or partnerships that validate the business's potential.
5. Alternative Strategies for Hiring Talent
If the H-1B visa application is not selected or feasible, startups can consider alternative options:
- OPT and STEM OPT Extensions: Hire international students on Optional Practical Training (OPT) or extend employment under the STEM OPT program.
- O-1 Visa: Pursue an O-1 visa for individuals with extraordinary ability in their field.
- L-1 Visa: Consider the L-1 visa, which allows for the transfer of employees within multinational companies to a U.S. office. It’s ideal for startups with international branches or those planning to expand operations to the U.S.
In the next section we are going to take a quick look at alternative visa options for startup founders.
Alternative Visa Options for Startup Founders
Various alternative pathways cater to startup founders, offering flexibility and opportunities to establish a business while navigating immigration requirements. Below, we explore these options:
1. EB-1A Visa
The EB-1A visa is designed for individuals with extraordinary abilities in their field, such as science, arts, education, business, or athletics. It offers a pathway to permanent residency for highly accomplished professionals.
Key Requirements:
- The applicant must demonstrate extraordinary ability through sustained national or international acclaim.
- Evidence must include at least 3 of the following:some text
- Receipt of a major internationally recognized award (e.g., Nobel Prize) or at least three forms of documented achievements, such as:some text
- Published material about the applicant in major media.
- Original contributions of major significance in the applicant’s field.
- Membership in organizations requiring outstanding achievements.
- High salary or remuneration compared to others in the field.
Benefits:
- EB-1A applicants can self-petition, meaning no employer sponsorship is required.
- Provides permanent residency (green card) upon approval.
- No cap or lottery, making it a more direct route for qualified individuals.
Limitations:
- Requires substantial documentation to prove extraordinary ability.
- A high standard of evidence can make approval challenging for some applicants.
2. L-1 Visa
The L-1 visa is a non-immigrant visa allowing multinational companies to transfer employees from overseas to U.S. offices. It is commonly used for managers, executives, or employees with specialized knowledge.
Key Requirements:
- The applicant must have worked for the company abroad for at least one continuous year within the past three years.
- The U.S. office must be a branch, affiliate, parent, or subsidiary of the overseas company.
- The employee must qualify as:some text
- L-1A: For executives or managers.
- L-1B: For employees with specialized knowledge.
Benefits:
- Allows multinational companies to establish new U.S. offices.
- Spouses of L-1 visa holders (on L-2 visas) can apply for work authorization.
- A pathway to permanent residency is available through EB-1C for L-1A holders.
Limitations:
- Limited to 1 year for startups (extensions possible if the business grows).
- Strict requirements to demonstrate the relationship between the U.S. and overseas entities.
3. EB-2 National Interest Waiver (NIW)
The EB-2 NIW allows highly skilled professionals or entrepreneurs to bypass the traditional job offer and labor certification requirements by demonstrating that their work is in the U.S. national interest.
Key Requirements:
- The entrepreneur must have exceptional ability or an advanced degree.
- The startup’s work must:some text
- Have substantial merit and national importance.
- Provide a significant benefit to the U.S. economy, healthcare, or technology sectors.
- Demonstrate that the entrepreneur is well-positioned to advance the proposed work.
Benefits:
- Grants an immigrant visa number, which allows the applicant to file for a green card (permanent residency).
- No employer sponsorship is required.
Limitations:
- The rigorous application process requires strong supporting evidence of national interest and the entrepreneur’s qualifications.
4. O-1 Visa for Extraordinary Ability
The O-1 Visa is designed for individuals with extraordinary abilities in science, technology, business, or the arts. Startup founders with a proven track record of exceptional achievements may qualify under this category.
Key Requirements:
- The entrepreneur must demonstrate extraordinary ability through evidence such as:some text
- Published research or media coverage.
- Awards or recognition in their field.
- Contributions of major significance to their industry.
Benefits:
- Allows for flexibility in pursuing entrepreneurial ventures.
- No annual cap limits O-1 visa availability.
Limitations:
- Requires substantial documentation to prove extraordinary ability.
- Entrepreneurs must have a U.S. agent or employer to file the petition.
5. E-2 Treaty Investor Visa
The E-2 Visa is available to entrepreneurs from countries with treaty agreements with the U.S. who invest substantial capital in a U.S.-based business.
Key Requirements:
- The entrepreneur must:some text
- Hold citizenship in a treaty country.
- Make a significant investment in a U.S. business.
- Have at least 50% ownership of the business or control through a managerial position.
Benefits:
- It can be renewed indefinitely as long as the business remains operational.
- Covers the entrepreneur and their family members.
Limitations:
- Limited to citizens of treaty countries.
- Does not provide a direct path to permanent residency.
How Can Alma Help With H-1B Visa Processing?
At Alma, we simplify the H-1B visa process by providing a range of services to make the application process smoother and faster. It starts with an assessment to determine eligibility and immigration goals. Individuals and Businesses then consult with experienced immigration attorneys who help develop tailored strategies.
We prepare and submit key documents, such as the Labor Condition Application (LCA) and Form I-129, ensuring compliance with USCIS regulations.
We also manage H-1B transfers and provide clear guidance on required H-1B visa fees, including filing, fraud prevention, and ACWIA fees, ensuring transparency and compliance.
By combining our In-house platform and legal expertise, Alma offers a streamlined approach to H-1B visa processing.
Conclusion
Starting a business in the United States as an international entrepreneur can be both challenging and exciting. While the H-1B visa is a common choice, other options like the L-1, EB-1, EB-2 National Interest Waiver, and O-1 Visa also allow founders to bring their ideas to life and grow the U.S. economy.
With focus, planning, and the right support, international entrepreneurs can build successful businesses and contribute to one of the world’s most dynamic markets. For guidance and support, schedule a consultation with Alma.
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