H-1B for Employers: Wage Levels, Fees, and the Cap

A founder I know called me on a Tuesday in February. He had found the engineer he wanted, the offer was accepted in principle, and he wanted to know what paperwork he needed. I gave him the answer nobody wants on a Tuesday in February: the paperwork was the easy part, the calendar had already half closed, and the wage he had in his head was not the wage he was going to pay.

That last point is the one that catches first-time sponsors. An H-1B is not a permission slip you buy. It is a wage commitment enforced by the Department of Labor (DOL), a public file that a stranger can walk in and ask to read, and a lottery whose odds now depend on the salary you commit to months before the job starts.

I build the people and records tooling for companies that do this without an HR department at FirstHR, and this is the topic where I most often see a small team get the sequence wrong rather than the substance.

What follows is the employer side: the wage levels, the fee stack, the file, and the cap. It is general information and not legal advice, and a first sponsorship is worth an immigration attorney from the first phone call.

What Sponsorship Actually Commits You To

Sponsoring an H-1B commits you to pay a defined wage on a defined schedule, whether or not there is work to do, and to keep a file any member of the public can ask to inspect. The petition is yours, not the worker's, and so are the obligations attached to it.

Two agencies are involved and they check different things. The Department of Labor certifies that you have attested to the wage, the working conditions, the absence of a strike or lockout, and the notice you gave your existing staff. USCIS decides whether the role is a specialty occupation and whether the person qualifies for it.

The wage attestation is the part that has teeth long after approval. You owe the higher of the actual wage you pay your own similarly qualified staff in that role, or the prevailing wage for the occupation in that area.

Nonproductive time is still paid time under the program when it comes from your own decision, such as a gap between projects, or from the lack of a permit or license.

None of this replaces the ordinary onboarding record. An H-1B worker still completes Form I-9 and the rest of the new hire paperwork on the same timeline as everyone else. The immigration file sits beside the employment file rather than instead of it.

The Four DOL Wage Levels, and What Sets Them

The Department of Labor prevailing wage structure has four levels, positioned at approximately the 17th, 34th, 50th and 67th percentiles of the wage distribution for one occupation code in one geographic area.

The immigration statute at 8 U.S.C. 1182(p)(4) requires at least four levels commensurate with experience, education and the level of supervision. Where a survey offers only two levels, the gap between them may be divided into thirds to create the two middle ones.

The level is a property of the job, not the candidate. It comes out of the requirements you wrote: years of experience demanded, education beyond the normal minimum for the occupation, whether the role supervises anyone, whether it is supervised closely, any license, and any special skill named in the posting.

A generous job description written to attract applicants can move a role up two levels and add tens of thousands of dollars a year to the salary floor.

That has always been true. What changed is that wage levels now also decide your odds, with the level judged by the salary you offer. Under the weighted selection that took effect for the fiscal year 2027 cap season, a registration whose offered wage reaches level IV goes into the pool four times, level III three times, level II twice and level I once.

So wage levels now do two jobs at once. The level your requirements produce sets the floor you must pay for the whole period of employment, and the level your offered salary reaches sets the probability that you get to pay it at all. Deciding the level casually, or letting a template posting decide it for you, is the most expensive shortcut available in this process.

How the Prevailing Wage Is Actually Set

You have three ways to establish the prevailing wage for an H-1B: request a determination from the National Prevailing Wage Center, use a survey from an independent authoritative source, or use another legitimate source of wage information. Only the first one gives you safe harbor (DOL Office of Foreign Labor Certification, prevailing wages).

Safe harbor is worth understanding precisely, because it is not a guarantee against every problem. If you obtain the determination from the National Prevailing Wage Center and apply it properly, meaning the right geographic area, the right occupation and the right skill level, the Wage and Hour Division will not challenge the validity of the wage in an investigation. Apply it to the wrong occupation code and the protection goes away.

Many employers skip the request and read the figure from the online wage library, which is legitimate and much faster. The wage data comes from the Occupational Employment and Wage Statistics survey run by the Bureau of Labor Statistics.

The Office of Foreign Labor Certification refreshes that data annually: the current file covers July 2026 through June 2027 and took effect on July 1, 2026. A figure taken from the previous file after that date is simply out of date.

Two practical cautions. The prevailing wage is a floor, not the answer: you owe the higher of it and your own actual wage for comparable staff, so a well-paid internal team raises the number. And the figure is metro-specific, which means a remote hire in a different city produces a different obligation and, in many cases, a second labor condition application.

Settle the level on paper before the posting goes out, because everything downstream has to match it. This worksheet walks the same order the case file will need: the occupation code and the worksite, the requirements that set the level, the level itself and who agreed to it, then the two wages you compare.

There is also a change on the horizon that belongs in any budget conversation. The Department of Labor published a proposed rule in the Federal Register on March 27, 2026 that would move the four levels to the 34th, 52nd, 70th and 88th percentiles, with the comment period closing on May 26, 2026.

The change is a proposal rather than a rule, but a first sponsorship priced at the current Level I should be modeled against a much higher floor before you commit to a multi-year role. If you maintain salary bands, this is the moment to check whether the sponsored role fits inside them.

Is There a Minimum Salary for an H-1B?

There is no national minimum salary for an H-1B. The floor is the required wage for your particular role, which is the higher of the prevailing wage for that occupation code in that metro area and the actual wage you already pay comparable staff. The same job title can carry very different floors in two cities.

The $60,000 figure that circulates as a minimum is a different rule wearing similar clothes. Under 20 CFR 655.737, a worker paid cash wages at an annual rate of at least $60,000, or holding a master's degree or higher in a specialty related to the job, is an exempt H-1B nonimmigrant. The wage has to be paid free and clear when due.

That definition only bites if you are an H-1B dependent employer, meaning H-1B workers make up a high share of your workforce, or a willful violator. Those employers carry extra attestations about not displacing US workers and about recruiting them, and the attestations fall away for exempt workers. Clearing $60,000 settles none of it if the required wage for the role is higher, which it very often is.

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The Real Cost Stack for a First Sponsorship

For a company, government fees for a first cap-subject H-1B run from roughly $2,200 to roughly $3,600 before immigration counsel, depending on which tier you fall into. The confusion comes from the fact that there is no single H-1B fee: there are five separate charges, three of which have their own eligibility test.

Two lines in that table sit outside the five core charges: premium processing, which is optional, and the 9-11 fee, which applies only to employers with 50 or more US employees, more than half of them in H-1B or L-1 status.

The two reduced tiers are defined by regulation rather than by feel. A small employer, for the purposes of the USCIS fee rules, is a firm or individual with 25 or fewer full-time equivalent employees in the United States, counting affiliates and subsidiaries.

The ACWIA fee, named for the American Competitiveness and Workforce Improvement Act, splits on the same threshold under 8 U.S.C. 1184(c)(9)(B), which sets the fee at $1,500 and halves it for an employer at or below that number.

Immigration counsel is the line most first-time sponsors underestimate, and it is not a government fee, so no fee schedule will tell you what it costs. Treat it the way you would treat any other professional service in your labor cost model: get a fixed quote for the labor condition application, the petition, and one response to a request for evidence, because the third item is where open-ended billing lives.

A separate, larger charge exists only as a proposal. The Department of Homeland Security (DHS) published a proposed rule on August 25, 2026 that would add a $103,265 fee to every cap-subject H-1B petition, including advanced degree cases, on top of all other fees and payments. Comments closed on September 24, 2026, and nothing is owed unless a final rule issues.

How Much It Costs to Sponsor a Work Visa in Other Categories

The H-1B is the most expensive of the common work visas to sponsor, and two line items explain most of it: the ACWIA training fee and the $215 registration, neither of which exists elsewhere. In the other categories a small business is likely to use, a company's government fees for a first petition run from roughly $800 to roughly $2,400.

Those totals assume one beneficiary, online filing wherever the form offers it, and no premium processing. Premium processing costs $2,965 in every category above except H-2B, where it is $1,780. The asylum program fee sitting inside each total is $600 at the regular rate, $300 for a small employer, and $0 for a nonprofit.

Two TN routes sit outside the table. A Canadian citizen in a TN occupation can be admitted at the port of entry on an employer support letter with no USCIS petition at all, which makes it the cheapest option in the group when the role and the nationality both fit. A Mexican citizen applies for the visa at a consulate first.

Permanent sponsorship is a different track rather than a larger version of this one. It runs through labor certification with the Department of Labor and then Form I-140 at $715 on paper or $665 online, on a timeline long enough that many small employers start someone on a nonimmigrant petition and file the green card case later.

The Costs You Are Not Allowed to Shift

The ACWIA education and training fee can never be paid by the worker, and no other cost may be recovered in a way that drops pay below the required wage. Both rules are enforced as wage violations rather than as paperwork problems, which is why they produce back-pay assessments.

Department of Labor rules at 20 CFR 655.731 state that the employer may not receive, and the H-1B worker may not pay, any part of the additional filing fee under section 214(c) of the immigration statute (the ACWIA fee), whether directly or indirectly, voluntarily or involuntarily.

The rule also closes the obvious workaround: if a third party pays and the worker reimburses that third party, the employer is in violation, because the employer was spared an expense the worker ended up carrying.

The second rule is broader and catches more people. Attorney fees and other costs connected to functions the employer is required to perform, such as preparing the labor condition application and filing the petition, are the employer's business expenses. A deduction that recoups them is unauthorized whenever it takes the worker below the required wage, and an unauthorized deduction is treated as non-payment of that amount of wages in an investigation.

The same logic reaches repayment agreements. A clawback that functions as a penalty for leaving before an agreed date is prohibited outright. Genuine liquidated damages assessed under state law, meaning a pre-agreed sum that reasonably estimates what an early departure costs you, can survive if they meet the deduction standards and exclude any part of the training fee.

Before you write a repayment clause into an offer, read it next to your ordinary termination practice and ask whether it would look like a penalty to somebody reading it cold.

One cost runs the other way and surprises employers at the end rather than the beginning. If you dismiss the worker before the end of the authorized period, you are liable for the reasonable cost of return transportation abroad. A voluntary resignation is not a dismissal, so the obligation attaches to your decision, not theirs.

The Labor Condition Application and the Public File

The labor condition application is filed with the Department of Labor on Form ETA-9035E through the Foreign Labor Application Gateway (FLAG), usually acted on within seven working days, and may not be submitted more than six months before the start of the employment period. Filing it creates a second obligation, due within one working day: the public access file.

The file itself has a defined contents list at 20 CFR 655.760: a signed copy of the certified application and its cover pages, documentation of the wage rate to be paid, a full and clear explanation of the system you used to set the actual wage for that occupation including any periodic increases, a copy of the documentation establishing the prevailing wage, a copy of the notice you posted, and a summary of the benefits offered to US workers in the same occupational classification.

That benefits summary is the item small employers skip, and it is not optional. If benefits differ across the workforce, the file has to explain how the differentiation is made, and if some H-1B workers receive home country benefits, it has to say so. Proprietary detail such as the cost of the benefits to you does not have to go in.

A fixed contents list and a one working day deadline is a checklist problem rather than a memory problem. Complete one of these per application on the day you file, and write both retention dates down while the case is open.

The public access file is public in the literal sense. Any member of the public may ask to examine it, and the regulation puts it at your principal place of business in the United States or at the place of employment. A file that exists as a folder on one person's laptop is not a file that survives that request, which is a reason to keep it wherever your other personnel records live.

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The Cap, the Registration, and the Weighted Selection

Congress sets the regular annual cap at 65,000, with an additional 20,000 numbers for beneficiaries holding a master's degree or higher from a US institution of higher education. Cap-subject employers must register electronically first, pay $215 per beneficiary, and win selection before any petition can be filed (USCIS H-1B cap season).

The mechanism changed for the fiscal year 2027 season. Where random selection is needed, USCIS now runs a weighted selection based on the highest wage level that the offered wage equals or exceeds for the relevant occupation code in the intended area of employment. Level IV registrations enter the pool four times, level III three times, level II twice and level I once.

Some consequences follow that are easy to miss on a first read. Each unique beneficiary is counted once toward the numbers no matter how many entries they receive, so the weighting changes the odds, not how many cap numbers get used. Registering the same person through several related entities does not multiply anything.

The wage level you claim also has to be evidenced as of the registration date, then matched by the petition, the labor condition application and the occupation code that follow.

Read that calendar backwards and the real deadline appears. To register in early March with a defensible wage level, you need the occupation code, the worksite and the wage analysis settled in January.

To file in April, you need the labor condition application certified, and the notice to your own staff has to go up on or within 30 days before you file it and stay up for 10 days. February is not a starting point for this process; it is the middle of it.

Which Employers Are Cap-Exempt

Four employer categories sit outside the annual numbers entirely, and a commercial company is not one of them. The exemptions come from 8 U.S.C. 1184(g)(5) and cover higher education, affiliated nonprofits, and research organizations (8 U.S.C. 1184).

There is one more route, and it is the one that occasionally helps a private company. A worker not directly employed by a qualifying entity still qualifies for the exemption if they will spend at least half of their work time performing duties at that entity, and those duties directly further higher education, nonprofit research or government research.

Work performed at the institution can include telework and other off-site work, because USCIS looks at the duties rather than the desk.

Three limits keep this from being a general workaround. The exemption does not travel with the person: when cap-exempt employment ends and no new exempt petition covers them, the worker becomes cap-subject unless they were already counted within that six-year period. Concurrent cap-subject employment alongside a cap-exempt job is possible, but its validity cannot run past the exempt petition. And if the exempt job ends first, the concurrent petition can be revoked.

Two narrower exemptions turn on the worker or the place rather than the employer type. A physician who moves to H-1B status on a Conrad 30 or other interested-agency waiver of the J-1 home residence requirement is not counted against the cap under 8 U.S.C. 1184(l)(2)(A).

According to USCIS, H-1B workers in Guam and the Northern Mariana Islands are also cap-exempt when their employers file before December 31, 2029.

The same statute carries the ACWIA exemptions, and they are not identical to the cap exemptions. Primary and secondary education institutions, institutions of higher education, related or affiliated nonprofits, nonprofits running established curriculum-related clinical training, nonprofit research organizations and governmental research organizations are all outside the training fee. A nonprofit that is cap-subject may still be ACWIA-exempt, which is worth checking before you write the check.

What You Still Owe After the Approval

An approved petition is a set of facts you have promised to keep true, so a material change to the role, the wage or the worksite generally requires an amended petition and often a new labor condition application. The wage obligation itself starts earlier than most employers expect.

The required wage begins when the worker enters into employment, which the rules define generously: making themselves available for work, waiting for an assignment, attending orientation, or studying for a licensing examination all count.

Even before the worker enters employment, an employer with a certified application and an approved petition owes the required wage beginning 30 days after the worker is first admitted to the United States, or 60 days after they become eligible to work if they were already here.

Ending that obligation requires a real termination rather than a quiet one. Department of Labor case law applies a three-part test: tell the worker that the employment has ended, notify USCIS so the petition is withdrawn, and offer the reasonable cost of return transportation abroad. Skip any of the three and the wage clock can keep running against you.

The worker gets breathing room that you should know about, because managers ask. A person whose employment ends is not treated as having failed to maintain status solely because of that, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once per validity period. They may not work during that time unless separately authorized.

That grace period is itself under review. DHS published a proposed rule on September 11, 2026 that would eliminate the discretionary 60-day window, with comments open until November 10, 2026. Nothing changes until a final rule issues, but an offboarding plan built on those 60 days should not assume them permanently.

Everything else is ordinary HR compliance with a higher audit risk attached. The Wage and Hour Division can investigate on a complaint, and the documents it asks for are the ones the program already told you to keep.

What worked for me

The change that mattered was moving the wage decision to the front. We stopped writing the job posting and then asking what level it produced, and started deciding the level first, checking the wage for that occupation code in that metro, and writing the requirements to match a number we had already agreed to pay. It felt backwards for about a week. It removed every unpleasant surprise after that, and once the lottery became wage-weighted it turned out to be the only sensible order anyway.

Nick Anisimov, FirstHR founder

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