You have found the right person for the job — a skilled, qualified professional who you want to hire and retain for the long term. The only complication: they are not a US citizen or permanent resident, and they need legal authorization to work in the United States. Employment-based immigration gives US employers the tools to bring foreign national talent to their workforce — but the process is complex, the rules are demanding, and the policy environment in 2025–2026 has made it more challenging and more expensive than it has been in years.
This page explains the most important visas and green card categories available to employers sponsoring skilled workers, what the process requires of you as a sponsor, and how Boston immigration attorney Giselle M. Rodriguez can help you navigate it.
Two Tracks: Temporary Work Visas vs. Permanent Residence (Green Cards)
Employment-based immigration generally runs on two parallel tracks, and as an employer you will often need to think about both at the same time:
- Temporary (nonimmigrant) work visas allow your employee to work in the US for a defined period. The most common for skilled workers is the H-1B. These visas are employer-sponsored, tied to the specific position, and must be renewed periodically. They do not, by themselves, lead to permanent residence.
- Permanent residence (employment-based green cards) allow your employee to live and work in the US permanently. For most categories, the employer must sponsor the green card through a separate, multi-step process that can take years. Green cards are categorized into preference tiers (EB-1 through EB-5), with different requirements and timelines for each.
For most employer-employee relationships, the practical path is: hire the employee on an H-1B (or other work visa), then — if you want to retain them long-term — begin the green card process while the visa is in effect. Timing matters: the green card process for some categories (particularly EB-2 and EB-3 for nationals of India and China) can take many years, and starting early protects the employee’s ability to remain legally in the US during that wait.
| ⚠️ Important Policy Update for Employers: The $100,000 H-1B Fee (September 2025) On September 19, 2025, the President issued a proclamation imposing a $100,000 supplemental fee on certain new H-1B petitions. As clarified by USCIS, this fee applies to H-1B petitions filed on or after September 21, 2025 for employees who are outside the United States and do not already hold a valid H-1B visa or status. The fee does not apply to petitions for workers already inside the US (including change-of-status petitions for F-1 students, H-1B transfers, or extensions/amendments for workers already in H-1B status). The proclamation is effective through approximately September 21, 2026, and is subject to legal challenges and potential extensions. The fee must be paid through pay.gov before filing the petition with USCIS. Separately, beginning with the FY2027 H-1B lottery (spring 2026), USCIS is implementing a wage-weighted selection process that gives more lottery entries to petitions for higher-paid workers (Level IV = 4 entries; Level III = 3; Level II = 2; Level I = 1). If you are planning to sponsor a skilled worker, consult an immigration attorney before taking any action. The rules have changed significantly and the cost-benefit analysis for H-1B sponsorship now depends heavily on your employee’s current location and status. |
The H-1B Visa: Temporary Employment of Skilled Workers in Specialty Occupations
The H-1B is the most widely used work visa for skilled professional employees in the United States. It is specifically designed for positions in specialty occupations — those that require the theoretical and practical application of specialized knowledge and, as a minimum, a bachelor’s degree (or its equivalent) in a specific field directly related to the work. Common H-1B occupations include software engineering, data science, finance, accounting, architecture, engineering, medicine (with certain additional requirements), law, and many other professional fields.
Who Qualifies: The Specialty Occupation Test
A position qualifies as a specialty occupation if at least one of the following is true: (1) a bachelor’s degree or higher in a specific specialty is the normal minimum requirement for entry into the occupation in the US; (2) a degree requirement is common in the industry in parallel positions among similar organizations; (3) the employer normally requires a degree or its equivalent for the position; or (4) the specific duties are so specialized and complex that knowledge typically associated with attainment of a bachelor’s degree is usually associated with performance of those duties. The employee must also hold a qualifying degree (or equivalent work experience) in the specific specialty the position requires.
The H-1B Cap and the Lottery
Congress limits H-1B visas to 65,000 per fiscal year for the general cap, plus an additional 20,000 for workers who earned a graduate degree (master’s or higher) from a US institution. Because USCIS routinely receives far more registrations than available visas, H-1B cap-subject petitions are selected through a lottery. For FY2027 (petitions filed spring 2026), USCIS is implementing a new wage-weighted selection process: petitions for higher-paid workers (DOL wage Level IV) receive 4 lottery entries; Level III workers receive 3 entries; Level II workers 2 entries; and Level I workers 1 entry. This change significantly favors petitions for highly compensated employees.
Important exceptions: universities, affiliated nonprofit entities, nonprofit research organizations, and government research organizations are cap-exempt and may file H-1B petitions at any time of year, without going through the lottery.
The Employer’s Obligations
As the sponsoring employer, you take on significant legal obligations when you file an H-1B petition:
- Labor Condition Application (LCA). Before filing the H-1B petition with USCIS, you must obtain a certified LCA from the US Department of Labor (DOL). The LCA attests that you will pay the H-1B worker at least the prevailing wage for the occupation in the geographic area of employment (or your actual wage for similar workers, whichever is higher); that working conditions will not adversely affect similarly employed US workers; and that there are no relevant strikes or work stoppages. The LCA is filed electronically through DOL’s FLAG system and is typically certified within 7 business days.
- Prevailing wage compliance. The DOL prevailing wage is determined by occupational classification (SOC code) and four skill levels (Level I through Level IV) in the specific geographic area. You must pay at least the prevailing wage for the entire duration of the H-1B employment, including during any periods of “bench time” (when the employee is not actively working but remains employed). The DOL’s National Prevailing Wage Center (NPWC) can issue a formal wage determination, which provides “safe harbor” protection if your compliance is later audited.
- Form I-129, Petition for Nonimmigrant Worker. The H-1B petition itself is filed with USCIS using Form I-129, along with supporting documentation demonstrating the specialty occupation, the employee’s qualifications, and the employer’s ability to pay.
- Portability and transfers. H-1B workers have portability rights: they may transfer to a new employer once the new employer files an H-1B petition on their behalf, even before USCIS approves that petition. This means you can hire an employee who is currently on H-1B status with another employer and they may begin working for you immediately upon filing, while the transfer petition is pending.
- Duration and extensions. An initial H-1B is granted for up to 3 years and may be extended to a maximum of 6 years in 3-year increments. Beyond 6 years, extensions are possible if the employee has a pending PERM labor certification that has been pending for at least 365 days, or if an I-140 immigrant petition has been approved but a visa number is not yet available.
- H-4 dependents. The H-1B worker’s spouse and unmarried children under 21 may accompany them in H-4 status. H-4 spouses are eligible for work authorization (H-4 EAD) if the H-1B holder has an approved I-140 immigrant petition.
Other Nonimmigrant Work Visas for Skilled Employees
While the H-1B is the most common, other temporary work visa categories may be relevant depending on the employee’s qualifications, nationality, or role.
O-1A: Extraordinary Ability in Sciences, Education, Business, or Athletics
The O-1A visa is for individuals who have risen to the top of their field and who can demonstrate extraordinary ability through sustained national or international acclaim. Unlike the H-1B, the O-1A has no cap and no lottery. It does not require a specific degree. It does require extensive evidence: major awards or prizes, membership in associations requiring outstanding achievement, published work, high salary relative to peers, critical roles in distinguished organizations, and other evidence of exceptional status. This is a demanding standard, but for the right employee, it offers a cap-exempt, renewable pathway. Unlike the H-1B, O-1 visas can be renewed indefinitely in one-year increments as long as the employee maintains extraordinary status and the employment continues.
L-1: Intracompany Transferees
If you are a multinational company transferring an employee from an overseas affiliate, subsidiary, or parent to your US operation, the L-1 visa may be available. L-1A is for executives and managers; L-1B is for employees with specialized knowledge. The employee must have worked for the related foreign entity for at least one continuous year within the preceding three years. The L-1A can support an EB-1C (multinational executive or manager) green card petition without PERM labor certification.
TN: Canadian and Mexican Professionals Under USMCA
Citizens of Canada and Mexico who qualify in specific professional categories listed under the US–Mexico–Canada Agreement (USMCA, formerly NAFTA) may obtain TN status to work in the US. TN status covers over 60 professional categories including engineers, accountants, scientists, computer systems analysts, lawyers, and many others. TN status is granted in 3-year increments and is renewable. It does not require a cap or lottery, and Canadian citizens can obtain TN status directly at the port of entry. TN is an employer-specific status: if the employee changes jobs, a new TN application is required.
E-3: Australian Nationals in Specialty Occupations
The E-3 visa is similar to the H-1B but is available only to Australian nationals seeking to work in specialty occupations. It has a separate annual cap of 10,500 visas, which is historically not fully used, making it readily available. Like the H-1B, it requires a DOL-certified LCA and a specialty occupation position. E-3 visas are granted in 2-year increments and are renewable without limit. E-3 applicants can often obtain the visa directly through a US Embassy in Australia without the lottery process.
Employment-Based Green Cards: Bringing Your Employee to the US Permanently
If you want to retain an employee long-term, you should be thinking about the green card process from the start. The EB preference system classifies employer-sponsored permanent residents into tiers based on the employee’s qualifications and the nature of the position. The most relevant categories for skilled worker sponsorship are EB-1, EB-2, and EB-3.
| Category | Who Qualifies | PERM Required? | Typical Timeline (from I-140 filing)* |
| EB-1A | Extraordinary ability in sciences, arts, education, business, or athletics (self-petition possible) | No | 6–18 months if current (varies by country) |
| EB-1B | Outstanding professors or researchers with international recognition (employer must sponsor) | No | 6–18 months if current |
| EB-1C | Multinational executives or managers (must have worked for related entity abroad) | No | 6–18 months if current |
| EB-2 (standard) | Professionals with advanced degrees or exceptional ability, employer-sponsored | Yes (PERM) | 3–5 years+ (varies by country; India/China: many years) |
| EB-2 NIW | National Interest Waiver: advanced degree or exceptional ability + work benefits the US (self-petition possible) | No | 1.5–3 years (varies by country) |
| EB-3 Skilled | Skilled workers in positions requiring 2+ years training or experience | Yes (PERM) | 3–6 years+ (varies by country) |
| EB-3 Professional | Professionals with a US bachelor’s degree (or foreign equivalent) | Yes (PERM) | 3–6 years+ (varies by country) |
*Timeline reflects approximate current processing times as of early 2026 and excludes PERM labor certification time. India- and China-born nationals face significantly longer backlogs in EB-2 and EB-3 categories due to per-country caps. EB-1 categories are currently backlogged for Indian and Chinese nationals as well.
EB-1: Priority Workers (No PERM Required)
The EB-1 category is the highest-priority employment-based preference. It does not require PERM labor certification, which eliminates one of the most time-consuming and expensive steps in the green card process. There are three EB-1 subcategories:
EB-1A: Extraordinary Ability
EB-1A is for individuals who have reached the very top of their field in sciences, arts, education, business, or athletics. USCIS evaluates evidence across 10 criteria (such as major prizes and awards, membership in elite associations, published material about the person’s work, original contributions of major significance, high salary relative to peers, and roles in distinguished organizations) and requires that the person meet at least 3 of the 10. The person must also demonstrate that they will continue to work in the area of extraordinary ability and that their work will substantially benefit the US. Unlike most employment-based categories, EB-1A does not require an employer sponsor — the individual can self-petition.
EB-1B: Outstanding Professors and Researchers
EB-1B is for professors and researchers who are internationally recognized as outstanding in their specific academic field. The individual must have at least 3 years of experience in teaching or research in the field, must be entering a tenured or tenure-track teaching position or a comparable research position, and must be offered the position by a university, institution of higher education, or private employer with a qualifying research department. Evidence must include at least 2 of 6 criteria (such as receipt of major prizes, membership in associations requiring outstanding achievement, published material by others about the person’s work, peer review participation, original scientific or scholarly contributions, and authorship of scholarly books or articles). An employer must sponsor EB-1B petitions.
EB-1C: Multinational Executives and Managers
EB-1C allows multinational companies to transfer executives and managers from foreign affiliates, subsidiaries, or parent companies to their US operations as permanent residents. The employee must have worked for a qualifying related entity abroad for at least one year within the preceding three years, must be coming to the US to work in an executive or managerial capacity, and the US employer must have been doing business for at least one year. The L-1A nonimmigrant visa is often used as a bridge to EB-1C: an L-1A worker typically becomes eligible for EB-1C sponsorship once they are employed in the US for the required period.
EB-2: Advanced Degree Professionals and Exceptional Ability (PERM or NIW)
EB-2 covers professionals holding an advanced degree (master’s or higher, or a bachelor’s plus 5 years of progressive post-baccalaureate experience in the field) or individuals with exceptional ability in sciences, arts, or business — a lower bar than EB-1A extraordinary ability. Most employer-sponsored EB-2 petitions require a PERM labor certification before the I-140 can be filed.
EB-2 with PERM Labor Certification
For standard employer-sponsored EB-2 petitions, the employer must first obtain a PERM labor certification from the DOL (see the PERM section below). This certifies that there are no qualified US workers available for the position and that hiring the foreign worker will not adversely affect US workers’ wages or conditions. Once PERM is certified, the employer files Form I-140 (Immigrant Petition for Alien Workers) with USCIS.
EB-2 National Interest Waiver (NIW)
One of the most strategically useful pathways in employment-based immigration is the EB-2 National Interest Waiver. Under the NIW, the job offer — and thus the PERM labor certification — can be waived if the individual can demonstrate: (1) that their proposed work is in a substantial, intrinsic merit area; (2) that their work is of national scope; and (3) that it would be beneficial to the US to waive the normal requirements. The NIW is available to both employer-sponsored and self-petitioning individuals, making it attractive for researchers, scientists, engineers, physicians, entrepreneurs, and other highly skilled professionals. Because no employer sponsor is required, a self-petitioning employee can initiate the green card process independently — and can continue that case even if they change employers.
EB-3: Skilled Workers and Professionals (PERM Required)
EB-3 covers skilled workers (positions requiring at least 2 years of training or experience), professionals (positions requiring a US bachelor’s degree or foreign equivalent), and other workers (positions requiring less than 2 years of training). All EB-3 petitions require a PERM labor certification. EB-3 is generally more accessible than EB-1 or EB-2 in terms of the individual’s qualification threshold, but the PERM process adds time and cost, and EB-3 priority dates for India and China are backlogged by many years.
PERM Labor Certification: The Foundation of Most Employer-Sponsored Green Cards
PERM (Program Electronic Review Management) is the DOL’s process for certifying that hiring a foreign worker for a specific position will not harm US workers. It is required before filing I-140 petitions for most EB-2 and EB-3 categories. It is one of the most complex, expensive, and time-consuming elements of employment-based immigration — and one where errors can be extremely costly.
The PERM Process: Key Steps
- Prevailing wage determination. The employer submits a request to DOL’s National Prevailing Wage Center (NPWC) for an official wage determination for the position. This step is optional (employers may use other authoritative wage sources) but provides “safe harbor” protection. The NPWC typically takes several months to issue a determination.
- Recruitment. The employer must conduct a genuine, good-faith recruitment effort to locate qualified US workers for the position, following DOL-prescribed mandatory and optional advertising steps. Mandatory steps include internal job posting, two Sunday newspaper advertisements in the area of intended employment, and a job order with the State Workforce Agency. Professional positions require three additional recruitment steps from a DOL list. The recruitment period must run for at least 30 days and no more than 180 days before filing the PERM application.
- Recruitment documentation and analysis. The employer must review all applications received during recruitment, contact candidates, and document the results. Any US workers who applied and were rejected must have been found genuinely unqualified for clearly job-related reasons. The employer maintains a recruitment report documenting the results — this is not submitted to DOL but must be available if the application is audited.
- PERM application (Form ETA-9089). The employer files the PERM application electronically through DOL’s FLAG system. The filing date becomes the employee’s priority date — their place in the visa queue. DOL review typically takes 6 to 18 months, and a small percentage of cases are selected for audit, which adds additional time.
- DOL certification. If DOL certifies the application, it is forwarded to USCIS with the I-140 petition. If DOL denies, the employer may request reconsideration or appeal to DOL’s Board of Alien Labor Certification Appeals (BALCA).
Critical PERM Rules Employers Must Know
- The employer pays all PERM costs. Under DOL regulations (20 CFR § 656.12(b)), the employer must bear all costs associated with PERM labor certification, including advertising, attorney fees, and administrative costs. It is illegal to require or accept reimbursement from the employee for PERM costs. Violating this rule can result in invalidation of the certification, civil penalties, or debarment.
- The job requirements must match the job. PERM job requirements must reflect the genuine minimum requirements for the position — not requirements tailored to the specific foreign worker. If the job requirements are unduly restrictive, DOL may deny certification. For example, requiring a very specific degree, a specific language (unless genuinely required by the job’s business necessity), or a very specific set of prior experience that coincidentally matches the foreign worker’s exact background is a red flag that can trigger denial or audit.
- Layoffs in related occupations trigger additional scrutiny. If the employer has had layoffs in the same occupational classification in the area of intended employment within 6 months of filing the PERM application, the employer must document contact with laid-off US workers and offer them the job opportunity. Undisclosed layoffs can be grounds for denial or audit.
- The employer must maintain the ability to pay. From the PERM priority date through the employee’s adjustment of status or consular processing, the employer must be able to demonstrate the financial capacity to pay at least the offered wage. USCIS evaluates ability to pay when reviewing the I-140 petition.
The Employment-Based Green Card Process Explained Step by Step
| Step | Stage | What Happens |
| 1 | PERM Labor Certification (EB-2 / EB-3 only) | Employer obtains prevailing wage determination, completes recruitment, and files ETA-9089 with DOL. The filing date is the employee’s priority date. Typical timeline: 6–18 months including recruitment. EB-1 and EB-2 NIW petitions skip this step. |
| 2 | File Form I-140 with USCIS | Employer files the Immigrant Petition for Alien Workers (I-140) with USCIS, along with certified PERM (if required), evidence of the employee’s qualifications, and evidence of the employer’s ability to pay. Standard I-140 processing: 6–12 months. Premium Processing available for 15-calendar-day adjudication (many categories). Approved I-140 locks in the employee’s priority date even if employment changes. |
| 3 | Wait for Priority Date to Become Current | After I-140 approval, the employee must wait until their priority date is current in the DOS Visa Bulletin before proceeding. For most countries in EB-1 and EB-2, dates are current or near-current. For India and China in EB-2 and EB-3, waits can be years to decades. For EB-3 (all countries), waits are typically several years. |
| 4A | Adjustment of Status (employee in the US) | Employee files Form I-485 with USCIS when priority date is current (or if Dates for Filing applies). Can simultaneously file I-765 (work authorization) and I-131 (travel document). Biometrics appointment required. USCIS may schedule an interview. Total timeline: 8–18 months depending on field office. |
| 4B | Consular Processing (employee abroad) | Employee completes DS-260 via the National Visa Center, undergoes a medical exam, and attends a consular interview at the US Embassy. Upon approval, receives immigrant visa and enters the US as a permanent resident. |
| 5 | Green Card Issued | Employee receives a 10-year green card (Form I-551). They are now a lawful permanent resident and may work for any employer. If desired, they may apply for US citizenship after 5 years. The employer’s I-140 sponsorship obligation ends upon green card issuance. |
AC21 Portability: Protecting Your Employee During the Long Wait
One of the most important protections in employment-based immigration is the American Competitiveness in the 21st Century Act (AC21), which allows employees with pending green card cases to change employers or jobs under certain conditions without losing their place in the visa queue.
Under AC21, an employee with an approved I-140 who has a pending I-485 (adjustment of status application) that has been pending for at least 180 days may change employers or switch to a “same or similar” position with a different employer without the green card process being affected. The “same or similar” standard is evaluated based on the SOC code and general job duties, not a rigid title match.
AC21 also allows employees with a PERM priority date that has been pending for at least 365 days, or whose I-140 is approved but a visa number is not yet current, to extend their H-1B status beyond the normal 6-year cap in 1-year or 3-year increments.
For employers, AC21 means that a sponsored employee has meaningful job mobility during a long wait — which can create retention challenges. Early, open conversations with sponsored employees about their career trajectory and your long-term employment plans are important.
Challenges You Face as the Sponsoring Employer
1. Cost and Financial Commitment
Employment-based immigration is expensive. In addition to the new H-1B $100,000 supplemental fee (for certain new petitions for workers abroad), employers pay USCIS filing fees, premium processing fees (if used), DOL PERM-related advertising costs, and legal fees. For an EB-2 or EB-3 case, total employer costs (including attorney fees) typically range from $5,000 to $15,000 or more. The employer must bear all PERM-related costs — cost-sharing with the employee is prohibited for PERM, though some I-140 and adjustment of status costs may be shared by agreement.
2. Time: Starting Green Card Sponsorship Early Enough
The most common and most costly mistake employers make in employment-based immigration is starting the green card process too late. An H-1B worker can only be employed in H-1B status for 6 years without a green card process in place. If PERM and I-140 have not been filed — and the PERM priority date is not at least 365 days old — before the 6-year cap is reached, the employee may be required to leave the US. Employers should begin the green card discussion with sponsored employees at least 2 years before the 6-year H-1B cap, and for India- or China-born employees (who face much longer backlogs), the process should begin as soon as practicable.
3. The PERM Recruitment Obligation
The PERM process requires genuinely testing the labor market and being prepared to hire a qualified US worker if one is found. Employers cannot approach PERM as a formality. If a qualified US worker applies and is rejected without a legitimate, job-related reason, the PERM application will be denied. Any prior determination to sponsor a specific foreign worker — and any attempt to tailor the job requirements to fit that worker — is prohibited and can result in permanent debarment. Employers must also maintain comprehensive recruitment records for at least 5 years in case of a DOL audit.
4. Compliance with H-1B Obligations Throughout Employment
H-1B compliance is an ongoing responsibility. The employer must pay at least the LCA prevailing wage throughout the employment, including during non-productive periods. Any material change to the terms of employment — a change in job duties, work location, or salary below the LCA prevailing wage — may require a new or amended H-1B petition and a new LCA. Failure to comply with H-1B obligations can result in DOL fines, back pay liability, and debarment from future immigration petitions.
5. The Employee’s Country of Birth and Backlogs
Employment-based green card backlogs are subject to per-country caps: no single country can receive more than 7% of the total annual employment-based visas. This means that for employees born in India and China, the wait for an EB-2 or EB-3 green card can be decades — even after the I-140 is approved and the employee is fully qualified. These employees must maintain valid nonimmigrant status (typically through H-1B extensions under AC21) throughout the entire wait. For employers, this creates a long-term workforce planning challenge and a meaningful retention risk.
6. Maintaining the Employer-Employee Relationship
A fundamental requirement of most employment-based petitions is a genuine employer-employee relationship: the employer must have the right to control the manner and means by which the employee performs the work. This is particularly scrutinized in H-1B cases involving staffing companies or third-party placement, and in situations where the employee works at a client site rather than the employer’s own premises. Properly documenting the employer-employee relationship — including through employment contracts, offer letters, and organizational charts — is essential to avoid Requests for Evidence.
How Can Immigration Attorney Giselle Rodriguez Help Your Business?
Strategic Assessment and Pathway Selection
The first question is which visa or green card category is the right fit for your employee’s qualifications, your company’s structure, and your timeline. Giselle evaluates your specific situation and recommends a strategy — including whether to pursue H-1B, O-1, TN, L-1, or another pathway, and whether to begin EB-1, EB-2, or EB-3 green card sponsorship immediately or later.
H-1B Petition Preparation and Filing
Giselle handles the full H-1B petition process: LCA preparation and DOL submission, Form I-129 drafting, specialty occupation analysis, documentation of the employee’s qualifications, and USCIS filing — including advising on the $100,000 fee requirement for applicable petitions and the new FY2027 wage-weighted lottery strategy.
PERM Labor Certification
Giselle manages the PERM process from start to finish: prevailing wage determination strategy, recruitment design and execution within DOL requirements, recruitment documentation and analysis, Form ETA-9089 preparation, and DOL submission. She helps employers design job requirements that are genuinely job-related and PERM-compliant, and maintains the documentation needed to respond to audits.
I-140 Petition Filing
For all EB categories, Giselle prepares and files the I-140 petition with USCIS — including with premium processing where appropriate to lock in the priority date quickly — and assembles the supporting documentation: employee qualifications, employer financial statements, and (for EB-1 categories) the extensive evidence required to satisfy the extraordinary ability or outstanding researcher standard.
Responding to RFEs and NOIDs
If USCIS issues a Request for Evidence or a Notice of Intent to Deny, Giselle prepares a comprehensive, well-organized response within the deadline. Employment-based RFEs — particularly for H-1B specialty occupation questions or EB-1 extraordinary ability petitions — can be complex and require careful legal analysis and detailed evidence.
Adjustment of Status
When the employee’s priority date is current and they are ready to apply for a green card, Giselle manages the full I-485 adjustment of status process: filing, concurrent I-765/I-131 applications, biometrics, and interview preparation at the USCIS Boston field office.
Ongoing Compliance and H-1B Extensions
Giselle advises employers on ongoing H-1B compliance obligations, including LCA amendment requirements when job conditions change, H-1B amendments for material changes to employment, and H-1B extensions — both within the normal 6-year cap and AC21-based extensions beyond the cap for employees with pending green card cases.
Frequently Asked Questions
How much does it cost to sponsor an employee for an H-1B visa?
For new H-1B cap petitions (lottery-based), the employer must pay: the $215 registration fee per candidate, the Form I-129 filing fee ($730 for employers with 25 or fewer employees; $730 or higher for larger employers depending on other requirements), an ACWIA training fee ($750 for small employers; $1,500 for larger), an asylum program fee (for most employers), and premium processing fees if used ($2,805 for 15-day adjudication as of 2025). For new petitions for employees abroad filed after September 21, 2025, add $100,000. Legal fees vary but typically range from $2,000 to $5,000. Total employer cost for a new H-1B from abroad can now exceed $110,000.
Does my company need to be a certain size to sponsor an H-1B?
No. Any legitimate US employer — including small businesses, nonprofits, and startups — may sponsor H-1B workers. Some fees differ by company size (the training fee is lower for employers with 25 or fewer full-time equivalent employees). However, the employer must demonstrate it has a bona fide job offer and the ability to pay the required wage.
Can we sponsor an F-1 student who is currently working for us on OPT?
Yes, and this is one of the most common H-1B scenarios — and one of the most favorable under the current $100,000 fee rules. An F-1 student working on OPT who is sponsored for H-1B cap-subject status and approved for a change of status inside the US is not subject to the $100,000 fee, as long as USCIS approves the change of status while the employee remains in the US. Employers should file H-1B cap registrations for OPT employees as early as possible to take advantage of this exemption and allow sufficient time for the change of status before the OPT period expires.
What if the employee is born in India or China and the green card wait is 10+ years?
This is one of the most difficult challenges in employment-based immigration. For EB-2 India-born workers, the current priority date is decades behind. For EB-3, it is similar. The employee must maintain valid H-1B status — with AC21-based extensions — throughout the entire wait. Employers should: (1) begin the green card process as early as possible to lock in a priority date; (2) file and maintain I-140 approval so that AC21 extensions are available; and (3) consider whether EB-1 or NIW pathways might offer a shorter wait if the employee’s qualifications support them. This situation requires long-term strategic planning that benefits greatly from experienced legal guidance.
What happens if we want to promote the H-1B employee to a new role?
A promotion or lateral move that involves a material change in job duties, title, or work location (particularly to a different metropolitan statistical area) typically requires an H-1B amendment petition with a new LCA. Failing to file when required is a compliance violation that can affect the employee’s immigration status. Notify your immigration attorney of any anticipated job changes before they take effect.
What is the employer’s obligation after the employee gets their green card?
Once the employee receives their green card, they are an unrestricted lawful permanent resident and may work for any employer. The employer’s immigration sponsorship obligations generally end at that point. The employee’s green card is theirs — it is not revoked if they leave. The employer has no obligation to continue employing the worker after green card issuance, and the worker has no obligation to stay. (Some employers negotiate retention agreements separately, but these are contractual matters, not immigration requirements.)