Sponsoring an employee is a time-consuming and expensive process, taking up to a year to complete and costing thousands of dollars (from nearly $2,000 at a minimum to $6,500+, depending on your company size, type of processing services, and number of visa employees you have). However, sometimes it’s the best way for your company to get the workers it needs.
If you choose to sponsor an H-1B visa recipient, you need to prove that the position requires special skills or knowledge, as this visa type is specifically for qualified workers who possess skills not commonly available in the domestic labor market. You’ll also be responsible for a substantial amount of paperwork.
Expand the section below if you need more general information on H-1B visas, or follow along with our steps to learn how to sponsor an H-1B visa employee.
An H-1B visa is a nonimmigrant visa issued by the US Citizenship and Immigration Service (USCIS). It allows US employers to employ foreign professionals with specialized work skills in certain specialty occupations on a temporary basis. The H-1B visa program enables foreigners to work in the US for up to six years.
Who Is Eligible for H-1B Visa Sponsorship?
To be eligible for H-1B visa sponsorship, a candidate must have a sponsor in the US, and their specialized work skills must fit into one of the qualifying specialty occupations designated by the government. The sponsor must sufficiently demonstrate they are offering a position to the applicant which requires particular expertise which cannot be found in other US workers.
What Does Specialty Occupation Mean?
A specialty occupation, as defined by the USCIS, means a job that requires theoretical and practical application of a body of highly specialized knowledge to perform. Common examples of occupations may include:
- Software engineers
- Computer systems analysts
- Research scientists
Does the H-1B Visa Have an Annual Cap?
Yes, the USCIS limits the number of workers who can enter the country each year to 65,000. If a candidate meets additional specialized requirements, they may qualify for one of the additional 20,000 spots the USCIS provides for candidates with a degree from a US higher education institution.
Step 1. Make Sure Your Job Qualifies as a Specialty Job
When considering whether your open role is a good fit for an H-1B holder, look at some positions commonly filled with this visa:
- Architecture, engineering, and surveying
- Administrative specializations
- Medicine and health
- Mathematics and physical sciences
- Life sciences
- Managers and officials
- Miscellaneous professional, technical, and managerial
- Social sciences
Notice that these are fairly broad categories. Even if your position doesn’t fall neatly into one of them, you may be able to tweak your job description or make a case that your position falls into a commonly approved category.
A key component of the H-1B application process is to prove that the job you need to fill requires a special skill not readily available in the domestic workforce.
Generally, your job must meet at least one of the following criteria:
- Bachelor’s degree or higher required
- Requiring the degree is common for the industry or the type of job
- Your company normally requires a degree for this position
- The work duties are so specialized that workers typically holding this position have a bachelor’s degree or higher
To meet the above requirements as an employer looking to sponsor an H-1B visa recipient, you must ensure the employee meets at least one of the following:
- A bachelor’s degree or higher from an accredited US college or university, which is required by the specialty occupation
- A foreign degree equivalent to a US bachelor’s degree or higher
- An unrestricted state license, registration, or certification authorizing them to engage in the specialty occupation
- Education, training, or progressively responsible experience in the specialty occupation, which is at least equivalent to a degree, and recognition as an expert in the specialty occupation
Step 2. Determine the Pay Rate
As an employer, you must pay the H-1B employee at least the same wage as domestic workers in the same or similar position or the prevailing wage, whichever is higher. The application process does not require that you use any specific method for determining the pay rate. You are required to use the best information available to determine a fair and accurate salary. You will need to include the rate on your Labor Condition Application (LCA)—more on that later.
To determine the prevailing wage rate, you can use one of the following means:
- A Prevailing Wage Determination
- A wage survey conducted by an independent source
- Any other legitimate source of wage information
If you use a Prevailing Wage Determination from the National Prevailing Wage Center, you are given safe-harbor status. This means that if your chosen wage is questioned, the Wage and Hour Division of the Department of Labor will not challenge the validity of the prevailing wage, provided that you applied it properly using the correct geographic location, occupation, and skills required.
Step 3. Register for the H-1B Annual Lottery & Await Selection
USCIS limits the number of H-1B visas granted each year, currently to 65,000. Employers looking to enter the lottery must file an electronic registration and pay a $10 fee. By March 31 each year, USCIS notifies employers if they were randomly selected in the lottery.
To file your registration, you must first create a USCIS account. The dates change each year, but you should plan to register for the lottery around the beginning of March. Because USCIS makes its selection by the end of the month, it’ll stop accepting lottery registrations around March 25. To avoid any hiccups, get started as soon as possible.
Here’s the information you need to provide when registering for the lottery as an employer:
- Your company’s full legal name, including your DBA, if applicable
- Your company’s employer identification number
- Your company’s full legal address
- An authorized signatory’s name, job title, and contact information
- The H-1B visa recipient’s name, gender, date of birth, country of birth, citizenship, passport number, and degree information
Once you’ve completed all of this information, double-check to make sure everything is accurate. Mistakes can delay your registration and could eliminate you from this year’s lottery. Pay the fee and register to put your hat in the pool for the lottery.
Tip: Make sure to discuss this process with the H-1B visa recipient you intend to sponsor. If they are giving multiple companies their name to enter the lottery (hoping to increase their chances of being selected), all registrations with their name will be removed from the lottery. Only one registration per employer and H-1B visa recipient are allowed. Your company can submit multiple registrations as long as the H-1B visa recipients are different individuals.
Once USCIS closes the lottery registration, it will select the initial 65,000 visa recipients. Upon hitting that annual limit, it will then randomly select an additional 20,000 visa recipients from a pool with a US master’s degree or higher.
After the lottery date, usually by March 31, USCIS will update your online account. You’ll see one of the following statuses regarding your registration.
What It Means:
This status will show after you’ve submitted the lottery registration and before the lottery date. If you see this after the lottery has been conducted, it means selections have been made, but your registration will remain in consideration for the rest of the fiscal year.
Your registration has been selected to file an H-1B visa application for the current fiscal year.
You won’t see this status until the end of the fiscal year. If you do, that means your registration was not selected, and you’ll need to register again for next year’s lottery.
Seeing this status means that your company filed multiple registrations with the same visa recipient or the visa recipient’s name appeared on multiple registrations with other companies, making all registrations for this individual invalid.
Step 4. Complete & Submit the Labor Condition Application (LCA)
To comply with H-1B sponsorship requirements, you must complete the LCA filed by your company on behalf of workers seeking H-1B status. The Department of Labor (DOL) must approve your LCA before submitting it to USCIS. Be careful completing this application as inaccurate information, innocent or intentional, could lead to fines and bars on sponsoring nonimmigrant workers.
In the LCA, you’ll be required to attest to certain labor requirements:
- You will pay the visa holder a wage no less than the wage paid to workers in the same or similar positions, or the prevailing wage, if greater.
- You will provide safe working conditions that will not adversely affect other workers, and there is currently no strike or lockout.
Once complete, you must file your LCA electronically. If you are an employer with a disability or your company lacks internet access, you may file by mail, provided that you have received prior approval.
The DOL will review your LCA within seven business days. It is looking for obvious errors or inaccuracies. If it finds anything, you can be certain the DOL will contact you. If everything appears in order, the DOL will provide you with a certification of your LCA.
Step 5. Notify Your Domestic Employees
On the day you file your LCA or up to 30 days before, you must notify your domestic employees of your intent to file an H-1B application. If your workforce falls under a collective bargaining agreement, you must provide notice to the collective bargaining representative by providing them with a copy of the LCA.
If your workforce is not subject to a collective bargaining agreement, you can provide notice in one of two ways:
- Electronically provide your employees with notice of the LCA. This notice must go to all employees at the worksite location and in the occupational class for which you’re seeking an H-1B visa worker. You can satisfy this requirement by emailing each employee or by posting information on an internal website or electronic bulletin board for at least 10 days.
- Give your employees a physical notice of the LCA. You must post this physical notice for at least 10 days in conspicuous places at your workplace. The best practice is to post this notice near your other required notices, like the Wage and Hour Division notices or Occupational Safety and Health Administration notices.
To satisfy the notice requirement, you can provide the LCA, but you don’t have to. You can also provide a note with the following information:
- The number of H-1B visa recipient applications you are filing
- The occupational class in which each H-1B holder will be employed, if selected and approved
- Wages for each H-1B worker
- Estimated length of employment
- Work locations for each H-1B worker
- This exact language: “Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor.”
Step 6. Complete & Submit Form I-129
This is the granddaddy piece of the H-1B application process. Form I-129 is a long application and requires extensive documentation. Called the Petition for a Nonimmigrant Worker, you only have until June 30 (90 days after the lottery) each year to complete this application.
Along with Form I-129, you’ll also need to include:
- Form I-907 if filing with premium processing
- Form G-28 if using an attorney or other authorized representative to complete the application
- Form I-129 including all required supporting documentation to establish eligibility
- H-1B Data Collection and Filing Fee Exemption Supplement
- If the filing is for a worker from Chile or Singapore, H Classification Supplement or Free Trade Supplement
- A table of contents for the following supporting documents:
- Arrival-Departure Record Form I-94 if the worker is already physically present in the US
- SEVIS Form I-20 if the worker is a current or former student on an F-1 visa or a dependent on an F-2 visa
- SEVIS Form DS-2019 if the worker is a current or former J-1 or J-2 visa holder
- Form I-566 if the worker is a current A or G classified nonimmigrant
- Department of Labor certified LCA
- Employer, attorney, or representative letter describing the work, skills, and specialty status of the position and the H-1B worker
- Other supporting documents
When filing, consider providing a copy of the entire application packet and mark it as a “COPY,” so it’s not confused for a duplicate filing. This ensures that the representative reviewing your application packet has all the information required.
This step will take you a good portion of the 90 days you have to apply. Gathering the information is tedious and, especially if the worker is still overseas, there can be time delays in getting information from them. Begin this process as soon as you receive notification of approval because you’ll need every minute.
There are many fees associated with filing this application, besides any legal fees for having a lawyer handle this for you. On that note, while not cheap, having an immigration attorney prepare this filing for you can save you a ton of headaches and anxiety.
Purpose of Fee:
Form I-129 filing fee
Premium processing service fee (optional)
American Competitiveness and Workforce Improvement Act fee
$750 for companies with one to 25 employees
$1,500 for companies with over 25 employees
Fraud prevention and detection fee
Public Law 114-113 requires a fee for employers with 50 or more employees in the US with more than half on H-1B or L-1 visa status
Step 7. Instruct the Foreign Worker to Apply for Visa Admission
After you have filed Form I-129, you will wait for the approval. That will come when you receive Form I-797 from the USCIS. This is not a form you fill out, but one that lets you know the government has approved your application.
Upon receipt of Form I-797, you can inform your worker that they can now apply for visa admission into the US. Your worker must take a copy of Form I-797 with them to a US embassy or consulate in their home country and apply in person for their H-1B visa. Once approved, they’ll need to apply with the US Customs and Border Protection (CBP) for admission into the US on H-1B status. They will be allowed to enter the country for up to three years and have unrestricted travel rights. After the initial three years, you can apply for an extension.
When your new employee arrives in the US, which could be nearly a year after you started this process, you still need to follow your normal onboarding procedures. For employment verification purposes, you will still need to complete Form I-9. Failing to comply with employment verification requirements could lead to your worker being deported and your company being barred from sponsoring workers in the future.
Why Small Businesses Should Consider Sponsoring an Employee
While the same H-1B application rules apply for businesses of all sizes, small businesses may have trouble proving they have the financial resources and stability to maintain the employee during their time in the US. You may have to provide evidence of cash flow, current client contracts, balance sheets, and tax returns. This shouldn’t dissuade you from going this route if it’s best for your business because there are clear advantages. Click through the tabs below for some benefits to sponsoring H-1B visa employees.
Potential Updates to the H-1B Visa Program
The H-1B sponsorship program may face some upcoming changes. While none of these items are guaranteed, here are some potential changes that may come soon:
- General fee increases
- A redefinition of the H-1B employer and employee relationship
- Establishing new guidelines for employer site visits
- Clarification of rules for students on F-1 visa looking to transition their status to H-1B
- Requiring an amended or new H-1B visa application if there are material changes to job duties, employment status, or worksite location
- Prevailing wage increases
Finding highly skilled workers is hard, and you may need to consider different types of employees. Sometimes, you need to look outside the country—but that comes with its own challenges. If you’re looking to sponsor an H-1B visa recipient, we strongly urge you to discuss your options with an immigration attorney. They can guide you through the application process, ensuring that you accurately complete all the above steps to get highly qualified workers for your small business.