The H-1B cap season is underway. If your company wants to hire a foreign national worker — or retain one whose status is changing — the next few weeks are critical. Employers who wait until May to think about H-1B sponsorship will miss the window entirely.
This guide walks through everything an employer needs to understand before committing to H-1B sponsorship: the obligations, the costs, the compliance risks, and the alternatives when the lottery doesn’t cooperate.
What Is H-1B Employer Sponsorship?
Unlike some visas, H-1B workers cannot simply apply on their own. The employer must petition USCIS on the employee’s behalf — meaning the company accepts legal responsibility for the worker’s immigration status, their offered wage, and compliance with a web of Department of Labor regulations.
This isn’t a casual commitment. Employers who sponsor H-1B workers assume real legal obligations that last for years.
The H-1B Timeline: What Employers Need to Do and When
| Date | Action Required |
|---|---|
| February – March | Identify candidates; file prevailing wage request (optional but recommended) |
| March 1–20 | Candidate registration window (USCIS myUSCIS online system) |
| Late March | USCIS selects registrants (lottery results) |
| April 1 – June 30 | File full H-1B petitions for selected registrants |
| October 1 | New H-1B status begins (fiscal year start) |
Note: For the FY2027 cap (employment starting October 2026), registration typically opens in February/March 2026. If you’re reading this in March 2026, you’re right in the registration window.
Employer Legal Obligations for H-1B Workers
Many employers underestimate the compliance burden. H-1B sponsorship creates ongoing legal duties:
Labor Condition Application (LCA) Obligations
Before filing an H-1B petition, employers must file an LCA with the Department of Labor, certifying that:
- The H-1B worker will be paid at least the prevailing wage for their occupation and location
- Employing the H-1B worker will not adversely affect the wages and working conditions of U.S. workers
- There is no strike or lockout in the occupation at the worksite
- Notice was provided to U.S. workers at the worksite
Public Access File (PAF)
Employers must maintain a Public Access File that anyone can request. It must contain:
- Certified LCA
- Documentation of the actual wage paid
- Documentation of the prevailing wage determination
- Documentation of benefits offered to H-1B and U.S. workers
Wage Obligations — Even If You Stop Using the Worker
This is the biggest surprise for employers: if you “bench” an H-1B worker (stop giving them work assignments) but don’t terminate their employment, you must still pay their full salary. Benching is illegal under H-1B rules. The only way to stop the wage obligation is to formally terminate the worker and pay for their return transportation.
Worksite Changes Require USCIS Notice
If your H-1B employee moves to a different worksite — a new office, a client site, or even a permanent remote arrangement in a different city — you may need to file an amended H-1B petition before the move. Failure to do so is a compliance violation.
How Much Does H-1B Sponsorship Cost?
| Fee Category | Amount | Who Pays |
|---|---|---|
| Registration fee (lottery) | $215 per registration | Employer (cannot charge employee) |
| I-129 filing fee (base) | $780 | Employer (cannot charge employee) |
| ACWIA training fee (26–99 employees) | $750 | Employer (cannot charge employee) |
| ACWIA training fee (100+ employees) | $1,500 | Employer (cannot charge employee) |
| Fraud prevention fee | $500 | Employer (cannot charge employee) |
| Premium processing (optional) | $2,805 | Either party (if for employer benefit, employer pays) |
| Attorney fees | $3,000–$6,000 | Either party (often employer) |
Total typical cost per employee: $5,000–$12,000+ for new H-1B petitions. Renewals (H-1B extensions) are somewhat less expensive.
Important: Several of these fees cannot legally be charged to the H-1B employee. Deducting them from wages is a violation of H-1B rules and can result in back pay liability.
What Triggers a DOL Investigation?
The Department of Labor investigates H-1B employer compliance through complaints and audits. Common triggers include:
- Complaints from current or former H-1B employees
- Wage records that don’t match LCA certifications
- Industry-wide audits in high-H-1B sectors (IT consulting, staffing agencies)
- Whistleblower allegations from other employees
- I-9 audits that reveal H-1B documentation problems
Penalties for violations can include back wages, civil money penalties up to $10,000 per violation, and debarment from future immigration sponsorship.
When the Lottery Fails: Alternatives to H-1B Sponsorship
With an H-1B selection rate below 30%, smart employers always have a backup plan:
O-1A: Extraordinary Ability
No lottery, no annual cap. If your employee has exceptional achievements — peer recognition, media coverage, high salary relative to peers, critical role, publications, patents, or competition wins — they may qualify. Not just for famous people; many mid-level engineers, researchers, and executives qualify when their record is properly documented.
L-1: Intracompany Transferee
If your company has overseas affiliates, employees who have worked abroad for 1+ year in a managerial, executive, or specialized knowledge role can transfer to the U.S. under an L-1 visa. No lottery, and L-1A holders can pursue EB-1C green cards without the long PERM process.
TN: Canadian and Mexican Nationals
Under USMCA (formerly NAFTA), Canadian and Mexican nationals in qualifying professional occupations can obtain TN status quickly — sometimes at the border on the same day. No lottery, no annual cap.
Cap-Exempt H-1B Positions
Universities, affiliated nonprofits, and government research facilities are exempt from the H-1B cap entirely. If your company has a research partnership with a university, employees working at that location may qualify for cap-exempt H-1B status.
E-3: Australian Nationals
Like H-1B but only for Australian nationals. Less competitive, faster processing.
Green Card Sponsorship: Planning Ahead
If you want to retain your H-1B employee long-term, starting the green card process early is critical — especially for Indian and Chinese nationals, who face decade-long backlogs in EB-2 and EB-3 categories.
Key Green Card Options for Employers
- PERM Labor Certification (EB-2/EB-3): The most common path. File with DOL first, then I-140 with USCIS. Indian nationals in EB-2 currently wait decades; EB-1A or NIW may be better alternatives.
- EB-1A/EB-1B: No PERM required; faster for employees with extraordinary or outstanding ability
- EB-2 NIW: No job offer required; employee self-petitions based on national interest waiver
- EB-1C: For managers and executives of multinational companies; no PERM required
Frequently Asked Questions for Employers
Can a startup sponsor H-1B workers?
Yes — there is no minimum company size. However, USCIS scrutinizes startup petitions more carefully, especially regarding employer control and the specialty occupation nature of the role. Strong documentation is essential.
What if we need the employee to start before October 1?
For cap-subject H-1B petitions, October 1 is the earliest start date. Alternatives include O-1A or other cap-exempt visas for immediate start. If the employee currently has valid status (F-1 OPT, another H-1B, L-1, etc.), they can continue working in that status until the H-1B becomes active.
Work With an H-1B Employer Sponsorship Attorney
At Finberg Firm PLLC, we represent employers throughout Florida and Minnesota on H-1B sponsorship, compliance, and alternative visa strategies. We work with startups, mid-size companies, and large employers to:
- Evaluate whether H-1B or alternatives are the right fit
- Prepare and file LCAs and H-1B petitions
- Establish compliant Public Access Files
- Audit existing H-1B compliance before DOL or USCIS review
- Plan long-term green card strategies for key employees
📞 Schedule a consultation to discuss your company’s immigration needs.
💼 We offer employer immigration retainers for companies with ongoing hiring needs.
Finberg Firm PLLC. This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by reading this content.