Hiring the right employees, particularly STEM employees, can be critical to a startup’s success. And when that perfect candidate is a foreign national, you get the benefit of someone who will bring much more than just their technical skills to the company. The catch? You need to apply for a work visa for that candidate, which can get tricky for a startup. Luckily, there are best practices when it comes to preparing a strong visa application for startups.
Startups, especially those that haven’t been around for very long, are small in size, or are otherwise relatively unknown, must prove their legitimacy when they apply for a foreign candidate’s visa for a chance at success. In doing so, they often have to provide specific evidence to prove their validity. Most employers, particularly large, established companies, don’t have to think about explaining to the government who they are.
When an employer is interested in hiring a foreign national, common questions that come up tend to be about the position they’re looking to fill, the candidate’s qualifications, the type of visa the candidate could qualify for, and all the supporting evidence they would need to answer these questions.
This post dives into why startups need to provide additional information when applying for work visas and some of the most common types of information they need to provide.
Startups are different
Startups are different from established companies in a handful of ways. Yes, they tend to more have ping-pong tables, puppies running around the office and kombucha on tap, but those aren’t the differences United States Citizenship and Immigration Services (USCIS) cares about.
What USCIS cares about are the foundational things that make the kombucha possible in the first place. For example: is the startup a legitimate business? Do they have a physical location? Who are the founders? How are they paying themselves and their employees?
These are the types of questions that USCIS tends to be interested in when assessing whether a startup can be eligible to sponsor a foreign national to work for them. Let’s take a closer look.
This might seem obvious, but if the government has never heard of your startup, you probably have to tell them exactly who you are and what you do. This requirement goes for any company, of course, but petitions filed on behalf of, say, Google or Facebook can probably have slightly shorter company profiles and still pass muster. So while several sentences may be enough for them, if you run a startup, and want to increase your chances of approval, you should consider providing as much information about your company as possible.
As a note, we aren’t providing legal advice here. We are, however, sharing some of what we’ve seen along the way working with startups on various work visas. Here are a few examples.
- Simple language as to what the startup does. Startups, particularly technology startups, can be incredibly complex and sophisticated. Some technical explanatory language is definitely acceptable, but if you make your company profile sound like an engineering textbook, it can be confusing and frustrating. Explain the startup in simple terms, similar to the way you would to a panel of VCs, to help the USCIS adjudicating officer understand exactly what your business is and what it does.
- Give a history of how the company was born. Explaining the company mission can help paint a picture about the vision and long-term goals. This can also create an emotional connection to your startup, which never hurts.
- Mention any awards, accolades or other achievements your startup has received. Highlighting that your startup went through a prestigious accelerator, was built on award-winning code, or anything else that was newsworthy or impressive can help show that you know your stuff and you’re serious about what you do.
- Talk about VC funding or other investments. If you’re received investment dollars, it’s worth sharing. This proves others believe in you and are putting their money and time on the line to help you grow your business.
- Physical office locations. Having a physical location can be great – it signals investment on your end and some level of permanence. Even a contract with a co-working space can help.
There are certainly more factors that can beef up your startup’s company profile depending on the context, so be sure to work with your immigration lawyer to figure that out. Ask them what they think can help your specific startup, and provide as much supporting documentation as possible.
Ability to pay
Now that you’ve proven you’re for real, you also have to prove that you can actually pay your desired foreign worker. Contrary to some common misconceptions that foreign workers take jobs at lower wages, the U.S. Department of Labor (DOL), cares very much about fair wages when it comes to immigration.
One of the first requirements is proving that you can afford to pay a market rate. Here’s some evidence you can provide:
- Bank statements
- Client contracts that stipulate their payment schedules
- Letters of intent with potential clients that stipulate payment schedules
- Signed investor term sheets
- Accelerator program acceptance letters (the kind that pay)
This is the sort of information that large, established companies don’t have to provide for the most part. Sure, for publicly traded companies it’s all available online. But even privately held firms usually don’t have to go to the lengths a startup does to show that they have enough money to pay for a foreign worker.
To really bring the point home, it’s important to note that DOL actually has minimum wage requirements for some visa categories. So above showing that you have any money at all, you have to prove that you have enough money to support a particular foreign worker.
An example of this underlies the H-1B visa, a popular visa amongst startups and tech companies, which has very explicit requirements by the DOL’s Wage and Hour division: “[e]mployers must attest to the Department of Labor that they will pay wages to the H-1B nonimmigrant workers that are at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or the for the occupation in the area of intended employment – whichever is greater.”
In other words, the government requires employers who want to hire a foreign worker on an H-1B visa to show that they can pay a certain minimum salary based on several factors including the position, location, and their level of experience, etc. This is important to keep in mind because this means that on top of merely proving that your startup has money in the bank, you have to show that it’s enough to pay the minimally required salary for that software engineer, data analyst, etc. you’re hiring on an H-1B visa.
There are other visa categories that have their own, nuanced evidentiary requirements around ability to pay. But the overall lesson is this: startups should provide as much evidence as possible on the amount of money they have and their ability to support foreign workers.
Startups just need more pudding
To go off the old adage that the proof is in the pudding, startups simply just need to have more pudding than their larger, more established counterparts, to prove to the federal government that they’re the real deal. Showing who you are, what you do, how much money you have, and that you’re serious about your business, goes a long way in terms of helping bolster a visa application.
If your next important hire is from abroad, keep in mind the kind of evidence you might need to make the case for their visa, and partner with an immigration team that gets you and your business. The more you know and document up front, the stronger your visa application will be.
Oh, and it wouldn’t hurt to get some more literal pudding too, for the snack pantry.