As a video game attorney, I’m often asked whether a Limited Liability Company (LLC) can sponsor a work visa. This is particularly true for the H-1B visa, for a potential employee or one of the LLC’s owners.
The quick answer is yes, an LLC can sponsor an H-1B visa.
However, there are several important considerations to keep in mind. Let’s discuss them!
What Does It Mean to Sponsor an H-1B Visa?
First, let’s clarify what it means to “sponsor” an H-1B visa.
When a company sponsors an H-1B visa, they are taking on a significant responsibility. Sponsoring a visa involves more than just filing paperwork.
The company is making a commitment to the visa applicant and the U.S. government.
As the sponsor, the company is vouching for the applicant’s qualifications and agreeing to comply with all relevant laws and regulations. This includes:
- Paying the required wage, which must be at least the prevailing wage for the occupation and location
- Providing working conditions that won’t adversely affect the working conditions of similarly employed U.S. workers
- Notifying USCIS if there are any material changes to the H-1B employee’s job or if their employment is terminated
- The company is also responsible for maintaining detailed records related to the H-1B employee and making these records available to the government upon request.
For that last bullet point, these records include:
- A copy of the H-1B petition and supporting documents
- Proof of the employee’s qualifications
- Payroll records
- Documentation of the employee’s work assignments and duties
Sponsoring an H-1B visa is a significant undertaking for any company, including LLCs. It requires a thorough understanding of the legal requirements and a willingness to take on the responsibilities of sponsorship.
However, for LLCs and other companies that need to hire foreign workers with specialized skills, sponsoring an H-1B visa can be a valuable tool for attracting and retaining top talent.
H-1B Visa Eligibility Requirements
To be eligible for an H-1B visa, the applicant must:
- Have a valid job offer from a U.S. employer for a role that requires specialized knowledge
- Possess a bachelor’s degree or equivalent experience in fields like technology, engineering, or architecture
- The employer must also show that there is a lack of qualified U.S. applicants for the role.
Labor Condition Application (LCA)
Before filing the H-1B petition, the employer must submit a Labor Condition Application (LCA) to the Department of Labor (DOL).
The LCA outlines the wage and working conditions for the H-1B employee. It is meant to ensure they will be paid fairly and won’t adversely affect U.S. workers.
LLC Requirements for Sponsoring an H-1B Visa
There are certain requirements for an LLC to sponsor an H-1B Visa, which must be followed strictly in order to get approved.
Employer Identification Number
One key thing to note is that the LLC must have an Employer Identification Number (EIN) from the IRS to sponsor an H-1B visa. If you’re an LLC owner looking to sponsor a visa for yourself, you’ll need to make sure your LLC has an EIN.
Luckily, they are relatively simple to obtain through the IRS.
Valid Employer-Employee Relationship
You must also prove a valid employer-employee relationship with your own company. According to the U.S. Department of Labor, the H-1B employer is the entity that files the Labor Condition Application (LCA) and the H-1B petition on behalf of the worker.
For an LLC owner seeking to sponsor themselves for an H-1B visa, they must prove that their LLC, not the owner personally, is the employer.
Factors that can help demonstrate this include:
- The LLC has the right to control the H-1B worker’s employment, including the ability to hire, fire, pay, and supervise the worker
- The LLC provides the tools, materials, and equipment needed for the job
- The LLC sets the worker’s schedule and determines their job duties and responsibilities
- The LLC treats the H-1B worker the same as other employees in terms of pay, benefits, and working conditions
Establishing a valid employer-employee relationship is essential for LLCs sponsoring H-1B visas, especially when the beneficiary is an owner. Consulting with an experienced immigration attorney can help ensure that the relationship is properly documented and meets all legal requirements.
Other Issues – Caps and Duration of H-1B Visa
Understanding the H-1B Visa Cap
It’s also important to understand the H-1B visa cap. There is an annual limit on the number of H-1B visas available, and demand often exceeds supply.
Employers must register their petitions during a designated registration period. USCIS then conducts a lottery to select registrations for filing.
H-1B Visa Duration and Green Card Eligibility
The H-1B visa allows the holder to work in the U.S. for up to three years initially.
There is the possibility to extend for another three years. H-1B visa holders may also be eligible to apply for a green card if they wish to stay in the U.S. permanently.
Navigating the H-1B Visa Process
Navigating the H-1B visa process can be complex, especially for small businesses like LLCs. It’s crucial to:
- Follow all regulations and deadlines set by USCIS and DOL
- Maintain detailed records
- Pay required fees
- Ensure ongoing compliance with the visa terms
If you’re an LLC considering sponsoring an H-1B visa, you may want to consult with an attorney to help guide you. For example, they can help you:
- Understand the requirements
- Assess your eligibility
- Guide you through the process to improve your chances of success
As always, feel free to reach out if you have any other questions about work visas or legal issues in the video game industry. I’m here to help!
