Can A Small Business Sponsor H-1B Visa?

Yes, a small business can sponsor an H-1B visa for a foreign worker. The H-1B visa is a temporary work visa that allows employers in the United States to hire foreign workers in specialty occupations. To sponsor an H-1B visa, the employer must have a bona fide job offer of a specialty occupation job, and be willing and able to pay the foreign worker the prevailing wage for the occupation in the area of intended employment.

Requirement One: Your employer must have a bona fide job offer of a specialty occupation job.

The job must require at a minimum a bachelor’s or higher degree or its equivalent. It must be a real, bona fide job offer and not a made-up position solely for the lottery.

Requirement Two: Your employer must be able to pay the prevailing wage for the specialty occupation job in your work location.

Your employer must be able and willing pay the prevailing wage for the H1b position. To calculate the prevailing wage, talk to an experienced immigration attorney or go to this site. If your employer is not able to prove that they can pay the prevailing wage using previous tax returns, bank statements, or similar financial evidence, talk to our immigration lawyers right away to figure out alternative paths.

What is the H-1B Visa?

The H-1B visa program is administered by the U.S. Department of Labor and U.S. Citizenship and Immigration Services (USCIS). To sponsor an H-1B visa, the employer must first file a petition with USCIS.

The petition must demonstrate two things:

1) the foreign worker is qualified for the position, and

2) the employer has the ability to pay the foreign worker's salary.

Why is there a H-1B Visa Lottery?

It is important to note that the H-1B visa program has annual caps on the number of visas that are available. This means that there are only a limited number of spots for H-1B visa. The demand for H-1B visas is typically much higher than the number of visas available, so it can be difficult for employers, including small businesses, to secure an H-1B visa for a foreign worker. We estimate that the initial registration period for H-1B visas will start on March 1, 2023 and stay open through the end of March, 2023 (to be announced by USCIS) for the fiscal year starting in October 2023. During this window, prospective employers and representatives can submit their registrations using the online USCIS H1-B registration.

Each registration must be completed electronically and each applicant pays a $10 registration fee. For each registration submitted for the FY 2024 H1-B cap, USCIS will assign a confirmation number, which can be used to track the registration online. If the agency receives enough registrations through March 18, 2023, they will randomly select registrations from the pool and notify the registrant by March 31.

As we said in an earlier blog post regarding the H-1B process, the number of H-1B visa issued are capped at 65,000, with another 20,000 reserved for US Masters’ degree holders. While this means that not everyone seeking an H1-B visa will be issued one, the USCIS has had to conduct multiple lotteries in recent years to allocate all of the visas available. According to the study done by a study by the National Foundation for American Policy, the number of applicants for H-1B visas declined from almost 190,000 in the FY 2019 to 125,000 in the FY2020 to a mere 62,000 in the FY2021. This led to USCIS conducting two visa lotteries in 2021 because they failed to have enough applicants. The study concluded that the decline was likely due in part to reduced travel and mobility on account of the Covid-19 pandemic. It is unknown whether there will be a similar decline in registrations for the FY 2023 H1-B registration season, but it may be less competitive than before the pandemic began.

There is also a recent trend in fewer H1-B petitions being denied by USCIS. According to USCIS data, the approval rate for H-1B visas in the FY 2021 was 97.3%. The agency received 398,267 petitions for either initial and continuing employment or renewals during this period. This jump in approval can most likely be attributed to the high demand for talent in the growing tech industry as well as the policy shift under the current administration. Biden's more liberal approach towards immigration contrasts with the highly restrictive immigration policy seen under the Trump administration.

Larger companies like Amazon (6,182 approvals), Infosys (5,256 approvals), Google (1,453 approvals), and Microsoft (1,240 approvals) reap high benefits from being able to select top talent via the H1-B visa program, but this does not mean that smaller businesses and startups cannot take advantage of the same opportunity. Regardless of the size of a company, each applicant must adhere to the same requirements and demonstrate financial viability and ability to compensate the foreign employee during their stay. For small companies and startups, this can be a very difficult thing to prove, but an experience immigration attorney can walk you through the process. Once a company can show these things, they are on equal footing with everyone else in the H1B lottery, so a smaller company should not be intimidated by having to “compete” with the larger tech companies.

With the FY 2023 H1-B registration season just weeks away, reach out to the immigration attorneys at Xu Law Group to help guide you through the process.

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