H-1B Employer Requirements: What Companies Must Do to Sponsor
Sponsoring an H-1B worker is not just filing a petition. Employers take on significant legal obligations that run from before the first paycheck to after the visa expires. Understanding these requirements helps H-1B workers evaluate potential employers and helps companies avoid compliance pitfalls that can jeopardize a worker's status.
Frequently asked questions
Who pays the H-1B filing fees -- employer or employee?
The employer must pay the ACWIA training fee ($1,500 or $750 for small employers) and the fraud prevention and detection fee ($500). These cannot legally be deducted from the employee's wages or charged back to the worker. The base Form I-129 filing fee and optional premium processing fee can be paid by either party. Employers who charge employees for legally required fees violate DOL regulations and may be subject to back wage liability.
What happens if an H-1B employer benches a worker without pay?
Benching an H-1B worker without paying the required wage is a serious violation of the LCA obligations. The employer is required to pay the H-1B wage rate for all non-productive time caused by the employer's decision -- for example, if there is a gap between projects or a client contract ends. The only exception is worker-initiated leave (personal, medical, or FMLA). Violations can result in DOL debarment from the H-1B program, back wage assessments, and USCIS revocation of pending or approved petitions.
Does an H-1B employer have to pay for the worker's flight home if they are terminated?
Yes. INA Section 214(c)(5)(A) requires employers to pay the reasonable cost of return transportation (economy airfare) to the H-1B worker's last country of residence if the employer terminates employment before the authorized period ends. The employer must offer this regardless of the reason for termination and regardless of whether the worker actually leaves the US. Most workers who have another status option or intend to find a new employer will not use this offer, but the employer must make it.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Immigration law is complex and situation-specific. Always consult a licensed immigration attorney before making decisions about your immigration status.