The visa for hiring foreign employees has never been more coveted–or more complicated.
After escaping from what was then Czechoslovakia as a political refugee in 1986, Jiri Stejskal dreamed of starting a company that could foster better communication across cultures. Today, Stejskal’s Cetra Language Solutions is a 35-person translation company based outside of Philadelphia. His company’s competitive edge is the same thing that makes it so difficult to staff: Many of the best managers for translation projects reside overseas. “Our business is global by definition, so we need to have people who have the experience of living abroad and are native speakers,” says Stejskal.
It’s up to Stejskal to get them here–which is why he is one of tens of thousands of business owners vying for H-1B visas. The H-1B program offers temporary nonimmigrant visas for specialized foreign labor; it has been run since 1990 by U.S. Citizenship and Immigration Services to fuel the growth of American businesses. Every April, USCIS begins accepting petitions from hundreds of thousands of companies hoping to get one or more of the 85,000 three-year visas that are issued annually.
Landing an H-1B can be laborious, frustrating, and expensive. Petitions cost upward of $1,000, and often are plucked for consideration from a lottery. Even those that make it through can ultimately be denied for a clerical error, or get stuck in a months-long purgatory. “It’s a broken process,” says Gopal Krishnamurthy, founder of Plano, Texas-based Visual BI Solutions, which had four petitions pending for months. “The administrative burden on companies is unbelievable,” he says.
In recent years, competition for H-1Bs has only escalated. In 2014, India-based outsourcing giants including TCS and Infosys scooped up more than 16,000 of the visas. The situation is so bad that, last year, Alphabet (Google’s parent company) and Facebook spent millions lobbying Congress for immigration reform.
“Small businesses are at a competitive disadvantage,” says Delisa Bressler, an immigration lawyer at Foster LLP. Large companies often flood the H-1B application pool, while smaller businesses with less financial muscle make fewer bets on the people who are most critical to the future of their business. “A large company with operations abroad has the benefit of candidates in the U.S. and from abroad to select from,” says Bressler. “But a small employer is going to typically have one candidate in mind whom they’ve grown to love.”
To help you optimize your odds, here’s a primer on the H-1B process.
PROOF IS IN THE PAPERS
The more evidence you can provide of the legitimacy of your business, the better. Even though annual revenue and tax reports, lease documents, and purchase agreements are not required, they can only help bolster your petition. Make sure to plan ahead: You also need to file a Labor Condition Application with the Department of Labor, which can take seven workdays to process.
- A letter from employer or attorney
- Proof of employee’s higher education degree
- Copy of contract (final or proposed) between employer and employee
- Copy of the employee’s passport
- Petition for nonimmigrant worker*
- Certified Labor Condition Application*
- A license or permit specific to employee’s job (if applicable)
*a comprehensive list of USCIS-specific documents can be found at uscis.gov/forms.
You may think providing a link to your website is sufficient, but go a step further and submit glossy brochures and printed marketing materials. This government office loves a paper trail.
40-400 The range of pages an H-1B petition could include, according to immigration attorney Delisa Bressler
THE PRICE OF ENTRY
H-1Bs do not come cheap. The filing costs alone can be prohibitive for a startup, and what at first may seem like a minimal investment can quickly turn into an endless stream of fees. For example, if USCIS has doubts about your business or the candidate, it might make a “request for evidence,” which can cost from hundreds to thousands of dollars.
|Fewer than 25 Employees||More than 25 Employees|
|Anti-Fraud Detection Fee||$500||$500|
* Rate varies per staff size and composition.
If you’re willing to shell out an extra $1,225, you can bump yourself to the front of the line. This premium processing fee gets your petition reviewed by USCIS before the rest of the lot, assuming your application gets chosen in the lottery.
The number of H-1Bs the top U.S. tech companies received in 2014:
MAKING THE CASE
Don’t bother pursuing an H-1B if you’re looking to hire an average accountant. H-1Bs aren’t for just any prospective employee–they are reserved for specialized talent filling a specialized position. The onus is on you to prove that the skill set of the international employee is so specific that you couldn’t fill the post with someone already on U.S. soil.
Top Positions Awarded H-1Bs in 2014*
Architecture, Engineering, Surveying
If you can find an international candidate with a U.S. master’s degree or PhD, you’ll double your chances of his or her making it through the lottery: 20,000 of the 85,000 H-1B visas are reserved for employees with advanced degrees.
14 Percent of H-1B visas were awarded to small businesses in 2014.*
In 2015, 64 percent of 233,000 H-1B petitions were rejected.
* Totals include visa renewals, not just new applications.
YOU’RE NOT ALONE
There are plenty of outside services to tap if you’re looking for extra guidance. Immigration lawyers are an ideal, but pricey, option, while third-party startup services like UpCounsel and LawTrades.com, which connect startups to lawyers for a transaction fee, are less expensive. Remember, once an application is submitted, it’s difficult to make any changes.
Failing to check a box on a petition can get it sent to the “rejected” bin. An extra set of eyes to triple check every last detail–an outside lawyer or proofreader–might be worth the cost.
The proposed Innovation Act of 2015–backed by Silicon Valley heavyweights like Facebook–could expand the petition cap:
SOURCES: U.S. Citizenship and Immigration Services; LawTrades.com; UpCounsel
FROM THE MARCH 2016 ISSUE OF INC. MAGAZINE