H-1B for Recruiters: Ask Right, Plan Early, Hire Well
If you recruit or hire engineers and other professionals, H-1B is not just a visa problem that starts after you find the right person. It is a timing problem and a questions problem, and both are set long before an offer is signed. Get the questions wrong and you create discrimination risk. Get the timing wrong and the best candidate in your pipeline cannot start for the better part of a year.
Start with the questions, because they are the part recruiters control every day. Ask every applicant the same two questions, and stop there: are you legally authorized to work in the United States, and will you now or in the future require sponsorship for an employment visa? The Justice Department's Immigrant and Employee Rights Section says, in general terms, that an employer may ask those two. Ask them the same way, of everyone, so the answers sort candidates by sponsorship need — not by who they are.
Do not ask the rest. Do not ask what country a candidate is from, whether they are a citizen, what kind of visa they hold, when it expires, or how much time they have left in a status — and do not ask to see immigration documents during recruiting. Under INA Section 274B, the anti-discrimination provision enforced by the Justice Department, employers generally may not refuse to hire, or screen out, a work-authorized person because of citizenship or immigration status or national origin. That protection covers United States citizens and nationals, lawful permanent residents, refugees, and asylees, among others. A posting that says "citizens only," "green card holders only," or "H-1B candidates preferred" is a problem unless a law, regulation, executive order, or government contract actually requires that restriction for that job. "We have always written it that way" is not a requirement.
Whether to sponsor at all is, in general, a business decision an employer may make — but it has to be a real, consistently applied decision about sponsorship, not a decision about a protected person's status dressed up as one. If your answer is that the company does not sponsor for a role, say that plainly and apply it evenly. Do not sponsor for one candidate and discover the policy only when a candidate you disfavor needs it.
Export control is the one narrow area where status-adjacent questions can be lawful, and it is narrower than most job postings admit. The export rules — ITAR and the EAR — control who may be given access to certain controlled technical data. They do not require citizens-only hiring, and the Justice Department has been clear that they are not a defense for refusing to consider foreign nationals. If a role genuinely involves controlled technology, the lawful task is to work out, with proper advice, whether that person's access would need an export license. That is a licensing question about access to data. It is not a reason to put a citizenship bar in the posting or to screen out applicants at the resume stage.
Form I-9 belongs after the hire, not in the interview. The new hire completes Section 1 no later than the first day of work, and the employer completes Section 2 within three business days of that first day. The employee chooses which acceptable documents to show — one from List A, or one each from Lists B and C. You may not specify a document, ask for a particular document, or ask for more documents than the form requires. If your recruiting process asks for documents before an offer is accepted, fix the process.
Next, define the job before you source for it. An H-1B job must be a specialty occupation: a position that requires a bachelor's degree or higher in a specific field, or its equivalent, as the minimum to do the work, with duties that actually need that training. Vague duties produce weak cases. Write the duties the way the job really works — the systems, the decisions, and the judgment involved — and require only the degree and experience the job truly requires. Inflating requirements to make a case look stronger, or trimming them to fit a particular candidate, both cause trouble later, and not only with USCIS.
The wage is part of the job definition, and it is not a lever to pull. Before a petition is filed, the employer needs a certified Labor Condition Application from the Department of Labor, promising to pay at least the required wage: the higher of the actual wage paid to similarly employed workers or the prevailing wage for the occupation in the area of employment. Selection is now weighted by wage level, which tempts people to promise a higher wage to improve the odds. Do not. The wage level entered at registration — Level I gets one entry in the selection pool, Level II two, Level III three, and Level IV four — must be the level the offered wage genuinely reaches for that occupation in that area, and the petition that follows must match the registration. A wage promised for selection and not paid in fact is a wage violation, not a strategy.
Now the calendar, which is where most recruiting plans fail. Most private employers are cap-subject. Congress allows 65,000 new cap-subject H-1B workers a year, plus 20,000 more for people with a United States master's degree or higher. Employers register each candidate electronically during a short window in March and pay the registration fee, currently $215 per beneficiary. Selection is beneficiary-centered: USCIS selects people, not registrations, so a candidate registered by several employers still gets only one place in the pool, at the wage weighting that applies — extra registrations add nothing, and coordinating registrations to game the system invites a fraud finding. If the candidate is selected, the employer files the full petition during the filing window stated on the selection notice, at least 90 days starting April 1, and the earliest start date in that H-1B status is October 1. If the candidate is not selected, that employer cannot file a cap-subject petition for them that year. Plan offers, start dates, and project staffing on that reality, not on hope.
Some hiring does not wait for March. Institutions of higher education, nonprofits affiliated with them, and nonprofit and government research organizations are cap-exempt: they can file at any time of year. And a candidate who has already been counted against the cap and is working in H-1B status for another employer can usually start for a new employer once that employer's petition is properly filed — that is H-1B portability — without waiting for approval and without going through selection again. A candidate who was never counted, including one whose only H-1B was for a cap-exempt employer, is in a different position and generally needs a selection first. A student on Optional Practical Training whose change-of-status petition was filed on time may also get a cap-gap extension that bridges the gap to October 1. Ask which situation your candidate is actually in before you promise a start date.
Budget honestly, because the petition is the employer's filing, not the candidate's. A worker cannot self-petition for H-1B. Two fees may never be passed to the worker: the ACWIA training fee and the $500 fraud prevention and detection fee. The other petition costs are the employer's business expense, and no arrangement may cut the worker's pay below the required wage. Once the worker has started, you also may not bench them — put them in nonproductive status because work is slow or a project ended — and stop paying. If the lack of work is the employer's, the required wage is still due. And if you dismiss an H-1B worker before the approved period ends, you are liable for the reasonable cost of their return transportation home. Recruiters who quote a candidate a net figure that quietly nets out petition costs are building a violation into the offer.
Finally, do not confuse ordinary recruiting with PERM recruiting. If the company later sponsors the same person for a green card through PERM labor certification, that recruitment is a separate, formal, employer-run test of the labor market, run under Department of Labor rules for the permanent job. It is not your normal sourcing with a different label. The beneficiary must not interview, review, or consider United States applicants for that job. The job requirements in a PERM case must be the employer's actual minimum requirements — they may not be tailored to the beneficiary's background unless the extra requirement is documented as a business necessity, and the employer may not require training or experience the beneficiary does not have. A hiring manager who "helps" by screening PERM applicants against the incumbent's resume has damaged the case, however good the intention.
The short version for your next requisition: ask the two questions and no more, keep documents out of recruiting, write the real job and the real wage, work backward from March and October 1, and treat PERM as a separate process with its own rules if it comes. Do those five things and H-1B hiring becomes a planning exercise instead of an emergency.
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General information, not legal advice. Requirements and processing change; we confirm current rules for your case.