Corstange Law Group

Immigration for Startups

FAQ

General

I'm not in New York, San Francisco, or Ohio. Can you take my case?
Yes. We represent clients all over the US and internationally. We can communicate over email, video conferencing, or the phone, and you can upload documents to the folder we will share with you at the beginning of your case.

H1B

I've heard the H1B lottery procedure is different this year? How will it work?
You heard correctly! The lottery process for 2020 is completely new. Check out this page for a complete description, and this page for lottery-specific FAQs.
How quickly will we get a decision after filing?
Two Answers:

      1. If you pay the additional $1410 filing fee for “premium processing,” we will have a response on the application within 15 calendar days. This response will either be an approval, or a request for additional evidence. If they request additional evidence, we will have up to 87 days to respond. While it is possible to receive a second request for evidence, this is very unusual, and normally they will issue the final decision within 15 calendar days of receiving our response.
      2. If you opt not to use premium processing, response times vary widely, depending on how busy the service centers are at the time we file. We’ve seen it take as little as 10 days and as much as 20 months to reach a final decision through regular processing.
How is a 'transfer' application different from a 'new' application?
The advantage of a “transfer” application is that it may be filed at any point during the year, and is not subject to the random lottery. The paperwork for a “transfer” application, however, is exactly the same as that for a new one. USCIS considers every application as if it were completely new. The company will have to prove that the particular job being offered and the employee qualify, even if the job is almost identical to the one that the employee currently holds at their prior H1B employer.
Can my H1B employee work out of a coworking space?
Yes. Although USCIS loves to see traditional office space, working in a coworking space is completely legal and acceptable for H1B purposes. Because many officers are unfamiliar with and therefore skeptical of coworking arrangements, we simply need to provide them with some additional documentation about the space.
Can my H1B employee work from a home office?
Yes. Although it will bring more scrutiny to the application and we will need to provide extra documentation to prove the company is legitimate, working from home is allowed as long as we can show that the home office does not violate local zoning codes. Zoning codes almost always allow working from one’s own apartment, and occasionally allow for 1-2 non-tenants to work in a residential space as well.
How long does an H1B employee have to transfer to a new job after leaving her current H1B employer?
After her last day of work, an H1B employee can stay in the US for 60 days or up until her I-94 expires (whichever period is shorter). If a new employer files an H1B transfer application or she files an application to change to a different status within this 60-day period, she can remain in the US until receiving the final decision. If an application is not filed within this 60-day window, the employee needs to leave the US. A new application can still be filed for her, but she will need to wait outside the US until it has been approved.
When can the employee start working?
A prospective employee can legally start working for a new company as soon that company files the H1B transfer application if he is 1) currently in the US and 2) in H1B status, either working for another company or within the 60-day window after losing his H1B job. We recommend waiting for the receipt notice to arrive (by email 1-3 days after filing with premium processing or by mail 7-10 days after filing with regular processing). Prospective employees who do not meet both of these conditions must wait to start working until the application has been approved.
How much do I have to ay the employee?
H1B workers must be paid what the Department of Labor considers to be the “prevailing wage” for that position. The prevailing wage will depend on the details of the job and the worksite location.
Can I use equity or other benefits to meet the salary requirements?
No. The H1B wage requirement must be paid in cash on a regular payroll schedule. 100% of the required wage must be guaranteed, and may not be contingent on the performance of the employee or the company.
Seriously? But we are an early-stage startup! All of our employees are being largely compensated with equity. Do we really have to pay the full H1B wage in cash?
Yes. When determining the required wage, the Department of Labor does not take into account the realities of working at an early-stage startup. If your startup hires an H1B software developer, you will be expected to pay the same rate that larger companies do.
What if the required wage is too high for us to pay?
The required wage can be paid on an annual or hourly basis. when the annual salary is too much, the company could consider hiring the employee on a part-time, hourly basis. This allows the employee to start legally working, but also reduces the salary burden on the company.
What are my options if the application is denied?
    1. Reapply: This is an option for applications that are cap-exempt, either because the employer is cap-exempt, or because the employee has had an H1B in the past and wants to transfer to a new company. It is not an option for April lottery cases. You can send in additional evidence to address the reasons for denial, and your cases will likely be assigned to a different officer who may take a more favorable view of your case/ For strong cases, this can sometimes be the quickest route to approval. 
    2. Motion to Reopen or Reconsider: With this option, you ask that the officer who originally denied your case take another look to consider new evidence or reconsider the legal basis for denial. 
    3. Appeal: An application to appeal will be sent directly to the Administrative Appeals Office (AAO). The AAO generally defers to the original denial, and success rates are extremely low. 
    4. Federal Lawsuit: This is the only option that gets your case outside of the USCIS system and in front of a federal judge. With this option, you file a complaint in federal court claiming that USCIS’s denial of your application was “arbitrary and capricious.” For strong cases, this is becoming an increasingly common option because of the speed with which it can lead to resolution. If USCIS reviews the case and thinks you have a good chance of winning, they will typically reopen and approve your case in a matter of weeks instead of devoting the time and resources needed to carry on with the lawsuit. If USCIS decides to defend the denial, the timing becomes more unpredictable.