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CASE: H-1B Visa Successfully Sponsored by Client’s Self-Owned Business The H-1B cap season can be a tumultuous time for alien applicants, sponsoring employers, and their legal representation. There are strict application criteria and a limited quota each year for H-1B applications. Further, to qualify for cap eligibility, an applicant must have a United States business sponsor, and to increase the sensitivity of this process more, the annual cap-limit is usually reached on the first H-1B application acceptance days. So while these factors may understandably intimidate the average alien applicant, as this case will demonstrate, they are no match for the strategic work of Zhang & Associates attorneys. In February 2008, Ms. Chen emailed our office to inquire about the feasibility of creating her own company to sponsor her cap-subject H-1B petition and of then filing that petition by April 1st. At the time, Ms. Chen was working for a U.S. university under a cap-exempt H-1B visa. Ultimately, she wished to work for a private company, but at that point was unable to find an organization that was willing to sponsor her cap-subject H-1B application. As the April 1st filing date quickly approached, Ms. Chen became increasingly anxious. Nevertheless, with the guidance of Attorney, Ms. Chen was able to timely navigate the H-1B cap-subject process and successfully obtained an H-1B visa sponsored by a wholly, self-owned company later in the year. Ms. Chen obtained her Bachelor’s degree in International Relations from a prestigious university in China, and her Master’s degrees in Interactive Multimedia and Instructional Design and Technology from two very prominent universities in the United States. Throughout her time as a multimedia professional in China and as an advanced degree student working for her school in the U.S., Ms. Chen had performed services for a variety of different public and private organizations and institutions. In particular, she specialized in graphic and web design, multimedia development, and user interface assessment and improvement. She has also registered a copyright for one of her very successful work products. When Ms. Chen initially contacted Attorney, she responded to her email with some follow-up questions. After a few discussions with Ms. Chen, Attorney provided a positive evaluation of her potential self-owned company-sponsored H-1B case. According to the USCIS, a basic H-1B visa must satisfy the following criteria to meet eligibility: (1) the alien applicant’s work must reside in a specialty occupation in which specialty knowledge is required, (2) the alien applicant must demonstrate fulfillment of U.S. educational requirements amounting to at least a bachelor’s degree or equivalent, (3) the applicant’s sponsor must demonstrate the job offer they are extending is necessary for the company’s operation, (4) the applicant’s sponsor must show that it can pay the offered salary to the alien and (5) the applicant’s sponsor must offer the alien a salary at or above the prevailing wage for their occupation, as dictated by the Department of Labor (DOL). Thus, following a diligent assessment of Ms. Chen’s circumstances, Attorney determined that an H-1B petition using Ms. Chen’s impending business would be appropriate and effectual, especially because Ms. Chen had a very good business plan for the company and was able to obtain several letters of intent for cooperation from prospective clients. Attorney then assisted Ms. Chen with strategies to set up her company within the framework of H-1B visa requirements, and then prove that: (i) the business’ work was of specialized quality, that (ii) there existed a genuine business need for the desired position, that (iii) Ms. Chen’s company could provide for her salary, and that (iv) the salary would abide by prevailing wage requirements. All told, less than two months after Zhang & Associates’ filing of Ms. Chen’s H-1B petition, our office received word of her H-1B petition’s approval from the USCIS. Ms. Chen was delighted to discover this news and remains very grateful for our hard work and intelligent services that led to the approval of her H-1B visa and the proper establishment of her business in the United States. Zhang & Associates is proud to have collaborated with Ms. Chen in the creation of her business from scratch under very time-sensitive circumstances. Attorneys at Zhang & Associates, P.C. have also successfully obtained H-1Bs for several other aliens whose H-1B petitions were sponsored by self-owned companies. Contrary to certain beliefs, the ownership of a sponsoring company is not a factor leading to denial. The USCIS will independently review whether a sponsoring company has met the criteria set by H-1B regulations. Finally, for the countless potential H-1B applicants out there, the underlying message of this case study is that if you also seek H-1B status and are interested in sponsoring your application via a self-owned business, it can certainly be done, and Zhang & Associates would be honored to assist you. If you have any questions please contact our attorney at info@hooyou.com; our firm would be happy to provide a consultation. *Please note: an alien who is setting up business should consult with competent attorneys to avoid the unauthorized employment issues that may occur during the business establishment process before an H-1B visa is approved. *In order to protect our client’s privacy, all identifying information has been changed. ------ (01/17/2009) For more immigration news, please click here |
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