H-1B Visa Sponsorship Guide — Employer Requirements & Process 2026

Employer Eligibility Requirements

The H-1B visa is employer-sponsored, meaning the foreign worker cannot self-petition (unlike EB-1A or EB-2 NIW). The employer acts as the petitioner and takes on specific legal obligations. Before beginning the sponsorship process, confirm your company meets the basic eligibility criteria.

Basic Employer Requirements

To file an H-1B petition, an employer must:

• Have a valid Federal Employer Identification Number (FEIN) from the IRS
• Be subject to US immigration and labor law jurisdiction
• Demonstrate a valid employer-employee relationship — the employer must control the worker's duties, schedule, and compensation
• Intend to pay the worker at least the prevailing wage for the occupation in the area of employment
• File via a licensed attorney or accredited representative (recommended)

Who Cannot Sponsor H-1B Workers

• Employers not in compliance with minimum wage, overtime, or anti-discrimination laws
• Employers in certain industries with specific DOL restrictions
• Individual persons (not legal entities) without a FEIN
• Employers who cannot demonstrate an employer-employee relationship (contractors, gig arrangements)

Position Requirements (Specialty Occupation)

The position must qualify as a "specialty occupation," meaning it requires:

• At least a bachelor's degree or higher in a specific field
• The degree must be a normal requirement for the role (not a bargaining chip)
• The job duties must be sufficiently complex that the knowledge required is at a degree level
• The employer typically requires a degree for the position (industry standard)

Common H-1B occupations include software engineers, data scientists, financial analysts, physicians, professors, and registered nurses. Roles that do not typically qualify include administrative assistants, general clerks, and manual laborers.

Labor Condition Application (LCA) Walkthrough

The Labor Condition Application (LCA), Form ETA-9035, is the first formal step in H-1B sponsorship. It is filed with the Department of Labor's Office of Foreign Labor Certification (OFLC) via the FLAG system before the I-129 is submitted to USCIS.

What the LCA Requires Employers to Attest To

The employer must certify four attestations on every LCA:

1. Prevailing Wage — The employer will pay the H-1B worker at least the greater of (a) the actual wage paid to similarly situated U.S. workers, or (b) the prevailing wage for the occupation in the area of employment.
2. Working Conditions — The H-1B worker's working conditions do not adversely affect the wages or working conditions of similarly employed U.S. workers.
3. No Strike/Lockout — There is no strike or lockout in the course of a labor dispute in the occupation in which the H-1B worker will be employed.
4. Notice — The employer has provided notice of the LCA filing to its employees in the relevant geographic area (typically via posting or electronic notification).

Prevailing Wage Determination (PWD)

Before filing the LCA, the employer must obtain a Prevailing Wage Determination (PWD) from DOL or use an existing wage database. The prevailing wage is based on:

• The Standard Occupational Classification (SOC) code for the position
• The work location (metropolitan statistical area)
• The wage level (Level I entry through Level IV expert)

Use DOL's OFLC Prevailing Wage Lookup tool to determine the correct wage level for each position. Inaccurate wage levels are one of the most common reasons for LCA denial or RFE.

How to File the LCA

1. Register at flag.dol.gov (Foreign Labor Application Gateway)
2. Create a prevailing wage request for the position and location
3. Once PWD is received, complete Form ETA-9035 with the four attestations
4. Submit electronically via the FLAG iCERT portal
5. Wait for certification — typically 5–7 business days
6. Retain the certified LCA as it must accompany the I-129 filing

LCA Validity Period

A certified LCA is valid for the period of employment stated on the filing, up to a maximum of 3 years (the standard H-1B validity period). The LCA cannot be reused for a different worker or a different job classification. If the employment terms change materially (title, wage, location, duties), a new LCA must be filed.

H-1B Cap Registration Process

The annual H-1B cap receives far more registrations than available petitions each year, making the registration and lottery process a central event in the sponsorship calendar.

The Annual Cap Registration Window

USCIS typically opens the electronic registration window in late February or early March for the following fiscal year's H-1B numbers (e.g., FY2027 slots open March 2026). The window lasts approximately 2–3 weeks. Registration is submitted via my.uscis.gov.

Registration Requirements

• Employer or attorney registers in the USCIS H-1B portal
• Submit $10 per beneficiary registration fee (non-refundable, not credited to petition fee)
• Provide: employer name, FEIN, attorney representation information, beneficiary name, date of birth, country of birth, passport number
• Only one registration per beneficiary per fiscal year

The Two-Round Lottery

When registrations exceed the cap, USCIS conducts a random lottery:

1. First round — Regular cap registrations (65,000 limit). All master's degree holder registrations are included.
2. Second round — If the regular cap is not filled, USCIS runs a second lottery from remaining registrations. Master's degree holders who were not selected in the first round may be included in the second selection.

After Selection: Filing Form I-129

Selected registrants have approximately 90 days to file Form I-129 with all supporting documents, including the certified LCA. Missing this window results in forfeit of the registration fee. The petition must be filed at the correct USCIS service center based on employer location.

Premium Processing

Employers can request Premium Processing (15 calendar days) for an additional fee ($2,500 for most employers, $1,000 for small employers with fewer than 25 employees). This does not guarantee approval — it only guarantees a response within 15 days or a refund. Premium processing can be requested at the I-129 filing stage, or upgraded after filing.

Cap-Exempt Employers & Positions

Not every H-1B petition is subject to the annual cap. Certain employers and position types are cap-exempt, meaning they can file I-129 petitions year-round without waiting for the March registration window.

Who Qualifies as Cap-Exempt

Employer vs. Position Exemption

The cap exemption applies to the employer in most cases, not just the individual position. A nonprofit research organization can sponsor unlimited H-1B workers as long as the work is for the organization's own research purposes. An employer that is partially cap-exempt (e.g., a university with both research and non-research divisions) must carefully delineate which positions qualify.

Cap-Exempt Filing Process

Cap-exempt petitions follow the same I-129 process as regular petitions, but:

• No registration window or lottery applies
• Petitions can be filed year-round (subject to I-129 processing times)
• The certified LCA is still required
• Premium processing is still available

Timeline from Offer to H-1B Start Date

The H-1B sponsorship process spans multiple stages, each with its own timeline. Below is a typical timeline for a cap-subject employer starting from a firm job offer.

F-1 OPT to H-1B Transition Timeline

For foreign workers currently in the US on F-1 OPT who are being sponsored:

• The cap registration is the same March window process
• If selected and approved, the H-1B typically starts October 1
• The worker can continue working until October 1 even if their OPT expires before that date (pending I-797 approval notice)
• If not selected, the worker generally cannot continue working after OPT expires

H-1B Employer Costs Breakdown

Employers are responsible for paying all H-1B filing fees and are obligated to pay the prevailing wage for the duration of the H-1B employment. The table below summarizes the fee components.

Other Potentially Applicable Fees

• Fraud Detection Fee ($500) — Applied to some categories; employer pays
• Public Law Fee — Additional fees for certain employer types under public law provisions
• DS-160 /签证 interview costs — Paid by the beneficiary, not the employer