Michael: “If anything in this life is certain--if history has taught us anything--it’s that you can kill anyone. Rocco?”
Rocco: “Difficult, not impossible”
This statement by Rocco Lampone, in “The Godfather: Part II,” to answer Michael Corleone about a planned assassination, comes to mind whenever someone asks me about H-1B at a “small” employer. That person has identified an employer that potential could petition for H-1B status for the person, but the person has concerns about the size of the employer and if it prevents H-1B.In answering this question, the first thing I say is that I have gotten approvals for H-1B petitions for employers with as few as two people. Several more approvals have gone to employers with three people. Overall, I estimate that 35% of my approvals have involved employers with fewer than 10. I wish that I could guarantee that I will get you an approval even though your employer is small, but I can’t. I can, however, offer some perspectives on this situation, and how to improve your chances.
Please be aware that no law or regulation mandates a minimum employee number or minimum revenue for an employer in order to qualify for H-1B. On the other hand, a small employer could well receive a request for evidence (RFE) that references the size of the employer. In such a case, usually, the immigration service is concerned about three things. First, is the employer financially strong enough to pay you? Second, will you, as an H-1B person, be relatively free of non-H-1B tasks? Third, does the employer really require your position? Let’s consider each point in turn.- Financially strong?
A condition of H-1B status is that the employer pay you “enough”—in legal terms, that the company pay you at least the “H-1B required wage.” Therefore, an employer with a small number of employees, and especially one with low revenue numbers, could cause concern. Overcoming this issue will require the employer to show sufficient financial resources, or strong potential future business. In fact, while I don’t recommend this practice, one H-1B employer a few years ago actually refused to disclose revenue and income figures on the H-1B petition, requiring me to use alternate means of showing financial strength. This petition ultimately was approved, though I wasn’t happy about the process.- Free of non-H-1B tasks?
A key requirement of H-1B status is that your job be sufficiently complex. The immigration service doesn’t want an H-1B person, therefore, to be spending significant time doing non-H-1B type work. For example, they probably don’t want an H-1B person to be spending all or most of his or her time sweeping the floor, sorting mail in the mailroom or answering the main company telephone number as a receptionist. The immigration service believes, rightly or wrongly, that such things have a greater likelihood in a smaller company. Therefore, you and your employer must show that such is not the case.- Is the position really required?
If an employer is small, then the service may question whether the job is really necessary at all for that employer. This issue is particularly relevant for the person who works only with people inside the employing organization, rather than for customers or clients. An employer of only three or four people, therefore, might have trouble justifying the hiring of an internal accountant. On the other hand, that same employer might have an easier time if it were an accounting firm, and the person is being hired to be billed out to do accounting for external clients. Therefore, make sure your employer has sufficient workload to justify your hiring.If you have an H-1B opportunity from a small employer, I wish you success. Remember, getting approval is difficult, not impossible.
Here is the video clip: https://www.youtube.com/watch?v=SnZyIHgM1xY
The information above does not constitute legal advice and does not form an attorney-client relationship.
Calvin Sun, Attorney at Law
We Chat: calvin_t_sun
We Chat: calvin_t_sun