United States — Work Authorization & Visas

The Immigration Reform and Control Act of 1986 (IRCA), codified at 8 U.S.C. § 1324a, establishes a universal employment-verification system for every employer in the United States. IRCA makes it unlawful to hire any individual knowing the individual is an unauthorized alien, or to hire without following the identity and work-authorization verification process mandated by subsection (b). The statute also prohibits the continued employment of an alien after an employer knows the individual is or has become unauthorized for such employment.

Form I-9 obligation and most recent edition (updated July 2026)

All U.S. employers must complete Form I-9, Employment Eligibility Verification, for every individual hired for employment in the U.S. after November 6, 1986. This requirement applies to U.S. citizens, lawful permanent residents, and work-authorized noncitizens. As of August 1, 2026, only the Form I-9 edition with the expiration date 05/31/2027 (edition 01/20/2025) is valid for new hires or reverifications; prior editions, including those bearing a 07/31/2026 expiration date, may not be used after July 31, 2026, for new hires or updates. Employers must ensure the correct version is used to avoid paperwork violations. This requirement is confirmed by official USCIS guidance and the current Form I-9 instructions.

Form I-9 completion follows three steps: (1) Employee completion and attestation in Section 1 no later than the first day of work; (2) Employer physical examination of documents and Section 2 completion within three business days of the start date; (3) Supplement B (formerly Section 3) for reverification or rehire.

Acceptable documentation: List A or List B + List C

Employees must present either one document from List A (establishing both identity and work authorization), or a combination of one document from List B (identity) and one from List C (work authorization). Employers must accept any documentation from the Lists that reasonably appears genuine and relates to the person presenting it. Employers cannot demand specific documents or refuse valid documentation. Discriminatory documentary practices constitute violations under 8 U.S.C. § 1324b.

Physical inspection and authorized remote alternatives

Documents must be examined in the physical presence of the employee, except for employers enrolled in good standing with E-Verify, who may use the DHS-authorized remote procedure. All authenticity and recordkeeping requirements remain in force regardless of method.

Retention and inspection

Forms I-9 must be retained for three years after the date of hire or one year after employment ends, whichever is later, and must be available for inspection by DHS, DOL, or DOJ upon request.

Substantive vs technical violations—ICE enforcement policy (effective March 16, 2026)

On March 16, 2026, U.S. Immigration and Customs Enforcement (ICE) published a revised Fact Sheet reclassifying several previously "technical" Form I‑9 errors as "substantive" violations. Errors that are now considered substantive (and subject to immediate penalty assessment without a 10-business-day cure period) include missing employee or employer attestation dates, missing preparer/translator information, unauthorized use of Spanish-language forms for hires outside Puerto Rico, and some failures of electronic I-9 systems. This marks a change from earlier standards and narrows the scope of employer safe harbors. The statutory good-faith compliance defense under 8 U.S.C. § 1324a(a)(3) should no longer be presumed to forestall penalties for these errors.

Applicability to cross-border and foreign employers

The I-9 requirement applies to any employment physically performed in the United States, regardless of employer’s corporate domicile.

Source: 8 U.S.C. § 1324a — Unlawful employment of aliens Source: Form I-9, Employment Eligibility Verification (USCIS, edition 01/20/2025) Source: USCIS, Completing Form I-9 Source: USCIS Handbook for Employers M-274, Who Must Complete Form I-9

The Immigration and Nationality Act (INA), codified at 8 U.S.C. § 1101(a)(15), defines the nonimmigrant classifications under which foreign nationals may be admitted temporarily to the United States for employment. For cross-border employers and global-mobility teams, the most frequently used temporary work-visa categories are H-1B (specialty occupations), L-1 (intracompany transfers), E-1/E-2 (treaty traders and investors), and TN (NAFTA professionals for Canadian and Mexican nationals). Each category imposes distinct eligibility tests, numerical limitations, duration ceilings, and documentation requirements that employers must understand before sponsoring foreign workers.

## H-1B: Specialty occupations

The H-1B classification, established at 8 U.S.C. § 1101(a)(15)(H)(i)(b) and administered under 8 C.F.R. § 214.2(h), allows U.S. employers to temporarily employ foreign workers in specialty occupations or as fashion models of distinguished merit and ability. A "specialty occupation" is defined by statute as one that requires theoretical and practical application of a body of highly specialized knowledge and attainment of at least a bachelor's degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation in the United States.

Annual numerical cap and lottery selection

The H-1B program is subject to an annual numerical limit of 65,000 new H-1B statuses or visas per fiscal year, with an additional 20,000 available for beneficiaries who have earned a U.S. master's degree or higher from an accredited U.S. institution, for a statutory total of 85,000 cap-subject visas annually. Certain employers—institutions of higher education, nonprofit entities related to or affiliated with such institutions, nonprofit research organizations, and government research organizations—are exempt from the numerical cap under 8 U.S.C. § 1184(i)(1)(A)(ii).

Because demand consistently exceeds supply, U.S. Citizenship and Immigration Services (USCIS) operates an electronic registration system each March for the subsequent fiscal year (beginning October 1). If the number of registrations exceeds the projected cap, USCIS conducts a weighted selection process effective for fiscal year 2027 forward under a final rule published December 23, 2025, which favors higher-skilled and higher-paid beneficiaries based on prevailing-wage levels tied to Occupational Employment and Wage Statistics (OEWS) data for the relevant Standard Occupational Classification (SOC) code and geographic area.

$100,000 additional fee for new H-1B petitions (September 21, 2025 Proclamation)

On September 19, 2025, a Presidential Proclamation titled "Restriction on Entry of Certain Nonimmigrant Workers" imposed an additional $100,000 payment requirement for H-1B petitions filed at or after 12:01 a.m. Eastern on September 21, 2025. This payment is a condition of eligibility for new H-1B petitions and must be paid via pay.gov before filing. The fee applies to initial cap-subject petitions and new employer petitions filed after the effective date. It does not apply to extensions of stay or amendments for existing H-1B workers, nor does it affect currently valid H-1B visa holders traveling in and out of the United States. The Proclamation contemplates that this fee will remain in effect for petitions filed through at least September 21, 2026, though further rulemaking may modify or extend it.

Labor Condition Application (LCA) requirement

Before filing an H-1B petition with USCIS, the employer must obtain a certified Labor Condition Application (LCA) from the U.S. Department of Labor on Form ETA-9035E. The LCA requires the employer to attest under penalty of perjury that it will pay the foreign national at least the prevailing wage or the actual wage paid to similarly employed workers, whichever is greater, and that employment of the H-1B worker will not adversely affect the working conditions of similarly employed U.S. workers. The LCA must be posted at the worksite and made available for public inspection.

Duration and extensions

H-1B status is initially granted for up to three years and may be extended in two-year increments up to a maximum of six years. Certain H-1B holders who have reached specified milestones in the permanent-residence (green card) process may extend H-1B status beyond the six-year limit under the provisions of the American Competitiveness in the Twenty-First Century Act (AC21).

## L-1: Intracompany transferees

The L-1 classification, codified at 8 U.S.C. § 1101(a)(15)(L) and administered under 8 C.F.R. § 214.2(l), permits multinational companies to transfer employees from a foreign office to a related U.S. office, provided the employee has worked for the company (or a qualifying affiliate or subsidiary) abroad for at least one continuous year within the three years immediately preceding the petition. The L-1 category divides into two subcategories: L-1A for managers and executives, and L-1B for employees with specialized knowledge.

Qualifying relationship and continuous employment

The U.S. employer and the foreign entity must maintain a qualifying corporate relationship—parent, branch, subsidiary, or affiliate—characterized by common ownership or control. The employee must have been employed continuously for one year in a managerial, executive, or specialized-knowledge capacity with the foreign entity within the three years before the transfer. Short trips to the United States for business purposes and other brief interruptions generally do not break the continuity requirement, but prolonged absences or changes in employment status will.

L-1A: Managers and executives

An "executive" under 8 U.S.C. § 1101(a)(44)(B) is an individual who primarily directs the management of the organization or a major component or function, establishes goals and policies, exercises wide latitude in discretionary decision-making, and receives only general supervision from higher-level executives, the board, or stockholders. A "manager" under 8 U.S.C. § 1101(a)(44)(A) supervises and controls the work of other supervisory, professional, or managerial employees; manages an essential function at a senior level; has the authority to hire, fire, or recommend such actions; and exercises discretion over day-to-day operations. USCIS applies these definitions strictly and will deny L-1A petitions for individuals whose duties are primarily technical or operational rather than managerial or executive.

L-1A status is initially granted for up to three years (or one year for new-office petitions), may be extended in two-year increments, and has a maximum duration of seven years total. L-1A managers and executives are eligible for the EB-1C multinational manager/executive immigrant classification, which requires no labor certification and offers one of the fastest paths to permanent residence.

L-1B: Specialized knowledge

The L-1B classification is for employees with "specialized knowledge," defined by 8 U.S.C. § 1184(c)(2)(B) as special knowledge of the company's product, service, research, equipment, techniques, management, or other proprietary interests and its application in international markets, or an advanced level of knowledge or expertise in the organization's processes and procedures. USCIS interprets this standard narrowly: the knowledge must be unique to the employer and not readily available in the U.S. labor market. Generic industry expertise or knowledge that could be acquired through brief training generally does not qualify.

L-1B status is initially granted for up to three years (or one year for new offices), may be extended in two-year increments, and has a maximum duration of five years total.

Blanket L petitions

Large multinational employers that meet specific criteria—at least one year of U.S. operations, three or more domestic and foreign branches/subsidiaries/affiliates combined, and either $25 million in annual U.S. sales, 1,000 U.S. employees, or at least 10 L-1 approvals in the prior 12 months—may file a blanket L petition under 8 C.F.R. § 214.2(l)(4). Once approved, the blanket petition allows the company to transfer eligible employees through consular processing without filing individual Form I-129 petitions with USCIS for each transfer, streamlining the process significantly. Blanket L approvals are valid for three years and may be extended indefinitely.

## E-1 and E-2: Treaty traders and investors

The E-1 and E-2 classifications, codified at 8 U.S.C. § 1101(a)(15)(E), are available only to nationals of countries with which the United States maintains a treaty of commerce and navigation. E-1 classification is for individuals (and essential employees) entering to carry on substantial trade principally between the United States and the treaty country. E-2 classification is for individuals entering to develop and direct the operations of an enterprise in which the individual has invested, or is actively investing, a substantial amount of capital. Both categories require that the employer and the principal investor or trader be nationals of the treaty country. E status is typically granted for two years initially and may be extended indefinitely in two-year increments as long as the treaty enterprise remains operational and the employee continues to qualify.

## TN: NAFTA professionals

The TN classification, established at 8 U.S.C. § 1101(a)(15)(TN) and administered under 8 C.F.R. § 214.6, is available exclusively to citizens of Canada and Mexico under the United States–Mexico–Canada Agreement (USMCA, successor to NAFTA). The TN category permits entry for business activities at a professional level in one of the occupations listed in Appendix 1603.D.1 of the USMCA, which includes accountants, engineers, lawyers, scientists, and other designated professions. Most TN occupations require at least a bachelor's degree or a specified professional credential (e.g., licensure for certain medical professions). Canadian citizens may apply for TN status directly at a U.S. port of entry or through a U.S. consulate; Mexican citizens must obtain a TN visa at a U.S. consulate before entry. TN status is granted for up to three years and may be extended indefinitely in three-year increments.

## Cross-border employer considerations

For global-mobility teams, selecting the appropriate visa category depends on the employee's job duties, educational qualifications, the employer's corporate structure, the employee's nationality, and the intended duration of the U.S. assignment. L-1 is often the preferred route for intracompany transfers within an established multinational group because it imposes no educational-degree requirement for managers and executives and no numerical cap. H-1B offers broader employer flexibility (no prior foreign employment required, no qualifying corporate relationship) but is subject to the annual lottery and now the $100,000 fee for new petitions. E and TN categories serve narrower populations (treaty-country nationals and USMCA nationals, respectively) but can be extended indefinitely and do not require employer-sponsored labor certification.

All nonimmigrant work classifications require that the foreign national maintain a residence abroad that they have no intention of abandoning, although the INA expressly permits dual intent for H-1B and L-1 visa holders under 8 U.S.C. § 1184(b), meaning that the existence of an immigrant visa petition or permanent-residence application does not preclude H-1B or L-1 classification or visa issuance.

Source: 8 U.S.C. § 1101 — Definitions (nonimmigrant classifications) Source: 8 U.S.C. § 1184 — Admission of nonimmigrants Source: USCIS, H-1B Specialty Occupations Source: USCIS, H-1B Cap Season Source: U.S. Department of Labor, H-1B Program Source: USCIS, L-1A Intracompany Transferee Executive or Manager Source: USCIS Policy Manual, Volume 2, Part L — Intracompany Transferees (L) Source: 9 FAM 402.12 — Intracompany Transferees – L Visas

The Immigration Reform and Control Act of 1986 (IRCA), codified at 8 U.S.C. § 1324a, created a two-track enforcement regime for employers who violate U.S. work-authorization requirements: civil monetary penalties for substantive hiring violations and Form I-9 paperwork failures, and criminal prosecution for pattern-or-practice violations. For cross-border employers and global-mobility teams, understanding this penalty framework is essential to calibrating compliance investment and managing exposure when establishing a U.S. presence or hiring individuals in the United States.

## Civil penalties: knowingly hiring or continuing to employ unauthorized workers

Section 1324a(e)(4) imposes civil fines on employers who knowingly hire an alien knowing the individual is unauthorized with respect to such employment, or who continue to employ an alien after obtaining knowledge that the individual is (or has become) unauthorized. The statute defines "knowing" to include not only actual knowledge but also constructive knowledge: courts and the Department of Homeland Security apply a willful-blindness standard under which an employer who deliberately ignores red flags or fails to investigate obvious warning signs is treated the same as one who has direct knowledge.

Civil monetary penalties for hiring or continuing to employ unauthorized workers are tiered by the number of prior offenses and are adjusted annually for inflation under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. Effective January 2, 2025, the penalty ranges published by DHS in the Federal Register are:

• First offense: $2,789 to $6,973 per unauthorized worker
• Second offense: $6,973 to $13,946 per unauthorized worker
• Third or subsequent offense / pattern or practice: $13,946 to $27,894 per unauthorized worker

These amounts apply to penalties assessed after January 2, 2025, for violations occurring after November 2, 2015. The actual penalty assessed within each range is determined by DHS based on statutory factors including the size of the employer's business, the employer's good faith, the seriousness of the violation, whether the individual was an unauthorized alien, and the employer's history of previous violations.

## Civil penalties: Form I-9 paperwork violations

Section 1324a(e)(5) imposes civil fines for substantive violations of the Form I-9 verification requirements — failing to prepare or properly complete Form I-9, failing to retain the form for the required period, or failing to make the form available for government inspection — as well as for uncorrected technical or procedural failures. These are separate from the substantive hiring violations and can be assessed even when the employer did not knowingly hire an unauthorized worker.

The January 2, 2025 DHS inflation-adjusted penalty range for Form I-9 paperwork violations is $272 to $2,789 per form. Because the penalty is assessed per form, an employer with pervasive I-9 failures across a large workforce could face civil fines substantially exceeding the fines for a single substantive hiring violation, even if every employee was authorized to work.

The statute provides a limited safe harbor: if an employer corrects a paperwork violation within 10 business days of being notified by DHS, the employer may avoid penalties for that violation, provided the violation was technical or procedural in nature and not a substantive failure. This 10-day cure period does not apply to substantive violations such as failing to prepare any Form I-9 for an employee or knowingly hiring an unauthorized worker.

## Good-faith compliance defense for substantive hiring violations

Section 1324a(a)(3) provides that an employer who establishes it has complied in good faith with the Form I-9 verification requirements has an affirmative defense against employer sanctions for knowingly hiring an unauthorized individual, unless the government can prove the employer had actual knowledge of the employee's unauthorized status. This good-faith compliance defense turns on the employer's Form I-9 documentation practices: an employer who properly examined facially genuine documents and completed the I-9 process in accordance with the statute will not be held liable simply because an employee presented fraudulent documents that reasonably appeared genuine.

However, the defense does not protect employers who accept documents that do not reasonably appear genuine, who fail to complete the verification process at all, or who ignore obvious warning signs of unauthorized status. The good-faith defense is narrow and fact-intensive. It does not excuse constructive knowledge: if an employer receives a Social Security Administration no-match letter, observes that a document is clearly altered, or is otherwise on notice that an employee may be unauthorized, continuing to employ the individual without resolving the discrepancy will negate the good-faith defense.

## Criminal penalties: pattern or practice

Section 1324a(f)(1) makes it a federal crime for any person or entity to engage in a "pattern or practice" of violations of subsection (a)(1)(A) (knowingly hiring unauthorized aliens) or subsection (a)(2) (continuing to employ unauthorized aliens). Criminal pattern-or-practice violations are punishable by a fine of not more than $3,000 for each unauthorized alien with respect to whom such a violation occurs, imprisonment for not more than six months for the entire pattern or practice, or both. These criminal penalties are in addition to — not in lieu of — civil fines.

The statute does not define "pattern or practice," and the threshold for criminal prosecution varies by prosecutorial discretion. The Department of Justice evaluates the number of violations, their timing, the presence of aggravating factors such as document fraud or prior warnings from immigration authorities, and the employer's intent. Employers who systematically fail to comply with I-9 requirements or who knowingly accept fraudulent documents across a large workforce are at elevated risk of criminal referral. The Attorney General may also bring a civil action in federal district court requesting an injunction, restraining order, or other equitable relief against an employer engaged in a pattern or practice of employment in violation of subsection (a)(1)(A) or (a)(2).

## Enforcement: ICE Homeland Security Investigations worksite enforcement

U.S. Immigration and Customs Enforcement Homeland Security Investigations (ICE HSI) is the principal federal enforcement agency for worksite violations. HSI conducts Form I-9 audits by serving a Notice of Inspection (NOI) on employers, requiring the production of all I-9 records within three business days. After reviewing the I-9s, HSI issues a Notice of Intent to Fine (NIF) for identified violations. Employers may contest the NIF by requesting a hearing before an administrative law judge within the Office of the Chief Administrative Hearing Officer (OCAHO) in the Department of Justice. If the employer does not timely request a hearing, the NIF becomes a final order.

ICE's worksite enforcement strategy has three prongs: compliance (I-9 audits and civil fines), enforcement (criminal arrest of employers and administrative arrest of unauthorized workers), and outreach (the IMAGE voluntary-compliance program, under which ICE provides education and training on proper hiring procedures, fraudulent document detection, and use of E-Verify). Employers found to have violated IRCA may also be barred from participating in federal contracts, grants, loans, and other government programs.

## Related criminal charges

Federal prosecutors may charge immigration violations alongside general federal criminal statutes. False statements made to federal investigators or in federal forms, including on Form I-9, may support charges under 18 U.S.C. § 1001 (false statements). Employers who accept documents they know to be false or who assist in procuring fraudulent documents may be charged with immigration document fraud under 18 U.S.C. § 1546. In cases involving poor working conditions, wage violations, or restrictions on workers' freedom to leave employment, prosecutors may bring human trafficking charges under 18 U.S.C. § 1590 or harboring charges under 8 U.S.C. § 1324(a)(1)(A)(iii). These overlay charges can result in sentences and financial penalties far exceeding the immigration-specific penalties in section 1324a.

## Cross-border employer considerations

For global-mobility practitioners, the employer-sanctions framework applies whenever the employment relationship involves work performed in the United States. An employer that sends an employee to the United States on an intra-company transfer or permits a remote worker to perform services while physically present in the United States should verify work authorization and complete Form I-9 for that individual, even if the employer is a foreign entity. The prohibition on knowingly hiring unauthorized workers and the Form I-9 completion obligation are federal law and preempt any state or local law imposing different or conflicting requirements under section 1324a(h)(2); state sanctuary policies do not limit ICE's authority to conduct worksite enforcement.

The penalty structure is cumulative and per-violation: an employer that hires multiple unauthorized workers in its first violation faces potential civil fines computed per worker (at the January 2025 rates, $2,789 to $6,973 each for first offenses), plus separate penalties for any I-9 paperwork failures, plus potential criminal exposure if the hiring pattern supports a pattern-or-practice charge. For a cross-border employer establishing its first U.S. operation, the financial and reputational risk of non-compliance — including potential criminal prosecution of responsible corporate officers — makes rigorous I-9 training, internal audits, and, where appropriate, enrollment in E-Verify a necessary part of U.S. market-entry planning.

Source: 8 U.S.C. § 1324a — Unlawful employment of aliens Source: 90 FR 2 (Jan. 2, 2025) — DHS Civil Monetary Penalty Adjustments for Inflation Source: USCIS Handbook for Employers M-274, Section 11.8 — Penalties for Prohibited Practices Source: ICE, Form I-9 Inspection Under Immigration and Nationality Act § 274A

The principal U.S. immigration routes for permanent, employment-based residence are the "employment-based immigrant visa" categories: EB-1 (priority workers), EB-2 (members of the professions holding advanced degrees or persons of exceptional ability), and EB-3 (skilled workers, professionals, and other workers), codified in 8 U.S.C. § 1153(b)(1)-(3) and administered by USCIS with labor certification by the U.S. Department of Labor for most applicants. Global-mobility leaders and in-house counsel should understand each stage of the process, from sponsoring a candidate to securing lawful permanent residence status ("green card").

EB-1: priority workers

• Multinational managers/executives (EB-1C): eligible for direct petition by a U.S. employer with a qualifying relationship to a foreign company, mirroring L-1A requirements.
• Outstanding professors/researchers; persons of extraordinary ability. No labor certification is required for EB-1 categories.

EB-2: advanced degree/exceptional ability

• Requires either an advanced degree (or foreign equivalent) or evidence of exceptional ability in the sciences, arts, or business. Most EB-2 filings require labor certification (PERM) unless the applicant seeks a National Interest Waiver (which eliminates the need for employer sponsorship and PERM).

EB-3: skilled professionals and workers

• For jobs requiring at least two years of experience ("skilled workers") or a U.S. bachelor's degree or equivalent ("professionals"). Also covers "other workers" (unskilled labor) but those are numerically capped further. All EB-3 petitions require PERM labor certification.

The PERM labor certification system Under 8 U.S.C. § 1182(a)(5)(A), most EB-2 and all EB-3 petitions require the U.S. employer to secure a "labor certification" from the Department of Labor through the Program Electronic Review Management (PERM) system. PERM is a test of the U.S. labor market: the employer must show, through prescribed recruitment efforts, that no able, willing, qualified, and available U.S. workers exist for the offered position at the prevailing wage. Crucial compliance steps:

• The offer must be for a permanent, full-time job in the U.S., paid at or above the prevailing wage as determined by DOL.
• The sponsoring employer must run newspaper ads and perform additional recruitment steps specified in 20 CFR § 656.17.
• If DOL approves the PERM, the employer may file Form I-140 (Immigrant Petition for Alien Worker) with USCIS for the named beneficiary.
• Only after I-140 approval and a current priority date can the employee apply to adjust status (Form I-485) or for an immigrant visa abroad.

During the PERM and adjustment phases, separate work authorization may be required if the foreign national does not otherwise hold valid nonimmigrant work status. Practitioners should be aware of lengthy backlogs in EB-2/EB-3 categories depending on country of origin and visa bulletin cutoffs.

Source: 8 U.S.C. § 1153(b) — Allocation of immigrant visas Source: USCIS Policy Manual, Volume 6, Part E, Chapter 2 — Employment-Based Immigration: First, Second, and Third Preference (EB-1, EB-2, EB-3) Source: DOL, Permanent Labor Certification

E-Verify is a federal electronic employment eligibility verification system administered by the Department of Homeland Security (DHS) and Social Security Administration (SSA) as a supplement to the Form I-9 process. Employers use E-Verify to confirm new hires’ work authorization by matching Form I-9 data against federal databases. For cross-border and global-mobility practitioners, E-Verify procedures, mandatory-use triggers, and compliance pitfalls are essential to U.S. hiring strategy.

Scope: When E-Verify is mandatory versus voluntary

Under federal law, most private employers are not required to use E-Verify. Mandatory participation applies primarily to:

• Businesses holding covered federal contracts or subcontracts containing the Federal Acquisition Regulation (FAR) E-Verify clause (see 48 CFR § 52.222-54, effective for new contracts or extensions after September 8, 2009).
• Some federal agencies and departments for their own hiring (8 U.S.C. § 1324a note).

Outside federal mandates, E-Verify use is voluntary unless state or local law requires it. Multiple states (not covered in this section) require E-Verify for all employers or certain sectors, but these are state-law overlays not mandated by federal statute. Federal sources do not maintain a current nationwide map of these requirements. Employers are urged to review the precise contract clauses and state/local statutes shaping their obligations. Source: 8 U.S.C. § 1324a note, 48 CFR § 52.222-54

Enrollment and workflow

Employers enroll by executing a Memorandum of Understanding (MOU) with DHS, agreeing to procedural rules. E-Verify may only be run after the Form I-9 Section 1 is completed and a job offer is accepted. Employers must enter new-hire information into E-Verify no later than three business days after the first day of paid work. Except as required by the FAR clause or certain state laws, E-Verify cannot be used to screen applicants or existing employees. For federal contractors with the FAR clause, E-Verify is required for all new hires and for existing employees assigned to the covered contract. The system cannot be used on independent contractors or employees outside the U.S. See USCIS E-Verify Federal Contractor Q&A.

If a Tentative Nonconfirmation (TNC) is issued, employers must promptly notify the employee using generated notices and allow the employee time to contest. No adverse action may be taken until a Final Nonconfirmation is issued by SSA or DHS. This process is anchored in the E-Verify MOU and federal guidance.

Anti-discrimination and procedural safeguards

Participants in E-Verify must comply with 8 U.S.C. § 1324b, which prohibits discrimination based on citizenship status or national origin in hiring, firing, or recruitment. Employers may not require specific documents for I-9 or E-Verify or use the system selectively. Violations can trigger civil penalties and, for government contractors, contractual remedies. Federal sources do not address whether E-Verify misuse carries additional consequences for cross-border remote workers beyond these remedies. Source: E-Verify User Survey Report, USCIS, 8 U.S.C. § 1324a note.

For multinational and cross-border employers, E-Verify obligations apply to all new hires physically working in the U.S., regardless of payroll location. The sources are silent on remote workers not physically present in the United States.

// NOTE: Broken links to E-Verify overview and contractor guidance replaced with equivalent primary-source official .gov documents (USCIS surveys and Q&A). No material legal change. 2024-06-11.

The Optional Practical Training (OPT) program allows F-1 student visa holders to work in the United States for up to 12 months in a role directly related to their major field of study. The regulation at 8 C.F.R. § 214.2(f)(10)(ii) governs OPT. After the standard OPT period, eligible graduates of STEM (science, technology, engineering, mathematics) degrees may apply for an additional 24-month STEM OPT extension—subject to further employer-specific requirements that differ materially from general OPT. All employment authorization for OPT begins only after the F-1 student receives an Employment Authorization Document (EAD) from USCIS with approved dates; work before the EAD’s start is unauthorized.

General OPT—employer scope and obligations

• The standard 12-month OPT period permits F-1 students to work for any employer (including EOR and many staffing models) so long as employment is directly related to the major field of study. While the student is responsible for demonstrating job relevance, employers may be asked by immigration authorities to confirm the nature of the employment if questioned.
• No E-Verify participation or special employer certification is required for initial OPT.
• Employers are not required to sign training plans or file specific OPT documentation with DHS (apart from standard payroll and I-9).

STEM OPT extension—heightened employer duties

• The 24-month STEM OPT extension is available only if the employer is enrolled in E-Verify and uses E-Verify at each worksite employing the student. Only qualifying STEM majors as listed on the DHS STEM Designated Degree Program List are eligible. 8 C.F.R. § 214.2(f)(10)(ii)(C).
• The employer and student must jointly complete Form I-983, Training Plan for STEM OPT Students. This plan outlines learning objectives, supervision methods, and compensation. The employer attests to direct and bona fide employer-employee supervision throughout the extension.
• All employment during STEM OPT must be W-2; self-employment and 1099 arrangements, as well as placements lacking direct supervision and training, are now prohibited. Staffing agencies and EORs are permitted only if the student is a direct, supervised W-2 employee (not at arm's length or client-supervised).
• Employers must notify the school’s Designated School Official (DSO) of material changes (e.g., job termination, pay, site, or duties) within 5 business days. Recordkeeping—including self-evaluations (12 and 24 months)—is required for audit purposes. 8 C.F.R. § 214.2(f)(10)(ii)(C).
• Wages, work conditions, hours, and benefits must be “commensurate to those offered to similarly situated U.S. workers” and the employer must not displace U.S. workers as a result of the STEM OPT hire (these requirements apply to STEM OPT, not to regular post-completion OPT). Bench/unpaid periods or use of STEM OPT for on-call/on-bench idle time is explicitly forbidden.

Cross-border and EOR compliance traps

• If the employer’s E-Verify registration lapses or is not used at the student’s worksite, STEM OPT work authorization may be revoked.
• Assignment models using third-party supervision or pure placement (not direct reporting and on-site management by the sponsor) fail STEM OPT regulations, risking status loss and compliance audit.
• Any reduction in hours below 20 per week, job changes outside the field of study, or unreported terminations/training-plan modifications can trigger SEVIS status loss.

For global-mobility teams, careful attention to these distinctions is essential when onboarding international graduates or supporting U.S. work assignments via EOR or staffing structures.

Source: 8 C.F.R. § 214.2(f)(10)-(12) — F-1 student OPT/STEM OPT Source: USCIS, Optional Practical Training (OPT) for F-1 Students Source: USCIS, STEM OPT Employer Responsibilities

The J-1 Exchange Visitor category is governed by the Mutual Educational and Cultural Exchange Act of 1961 (22 U.S.C. § 2451 et seq.) and its implementing regulations at 22 C.F.R. Part 62. The J-1 visa framework authorizes foreign nationals to participate in designated exchange programs for a range of roles—including interns, trainees, research scholars, professors, teachers, and specialized workers—often filling global-mobility needs not met by H-1B or F-1/OPT tracks. Authorization to work is granted as a product of participation in a specific, federally designated exchange program, not as an open labor-market visa. For global mobility and cross-border practitioners, understanding the employer’s duties and the nonnegotiable role of an authorized “sponsor” is essential.

Designation and sponsor role Only a State Department–designated sponsor organization (not the host employer) may issue the Form DS-2019 Certificate of Eligibility, which the applicant uses to apply for a J-1 visa. Sponsors are responsible for program vetting, placement oversight, compliance monitoring, and recordkeeping in SEVIS. Most U.S. employers, including corporations and universities, host J-1s by partnering with a third-party sponsor—though some large institutions hold their own sponsor designation. Host employers may not issue DS-2019s directly unless they are designated sponsors.

Employer requirements and work authorization scope A J-1 participant can only engage in the activities—and for the host employer(s)—listed on the DS-2019 and approved by the sponsor. Employment outside the approved scope is unauthorized. Employers must document and report any material changes in employment (location, duties, supervision, compensation) to the sponsor, who must then update SEVIS. J-1 employment is strictly programmed: unauthorized outside work, even at a related entity, can trigger SEVIS termination and U.S. immigration consequences.

2-year home residency requirement and waiver Some J-1 categories (not all) are subject to a 2-year home-country physical presence requirement (Section 212(e), 8 U.S.C. § 1182(e)) after program completion, restricting eligibility for H, L, or permanent residence unless a waiver is obtained. Cross-border teams should verify this requirement before planning longer-term assignments or sponsorship transitions.

Wage and workplace protections Sponsors must ensure that host employment meets stated wage, hours, and condition requirements. The regulations (22 C.F.R. § 62.22 for trainees/interns) require evidence that J-1s are not placed in unskilled or casual labor, strike-affected worksites, or roles that displace U.S. workers. Host employers are subject to both sponsor oversight and Department of State audits; compliance failures can lead to loss of sponsor designation and bar on program participation.

For global employers, the J-1 route offers flexibility for interns, trainees, and academic professionals, but it is procedurally distinct and demands close coordination with a designated sponsor for lawful work authorization. Failure to adhere to program-specific rules exposes both employer and participant to severe consequences, including status loss and enforcement actions under State Department oversight.

Source: 22 C.F.R. Part 62 — Exchange Visitor Program Source: U.S. Department of State, Exchange Visitor Program (J-1 Visa Basics) Source: 8 U.S.C. § 1182(e) — Two-year home-country physical presence requirement

// NOTE: June 2024 scheduled refresh replaced dead citation link (about-the-j-1-visa) with current primary source (J-1 Visa Basics) at https://j1visa.state.gov/basics/. No material regulatory or programmatic change found in statute or regulation. Section content remains accurate as of this update.

Work authorization for spouses and dependents of principal work-visa holders in the United States depends on the specific underlying nonimmigrant classification, with substantial differences across H-4, L-2, E-1/E-2/E-3D, J-2, and F-2 categories. Regulations, policy guidance, and select agency updates—especially for L-2 and E-class spouses—determine dependent eligibility for employment and how authorization must be documented.

H-4 spouses (dependents of H-1B principals):

• H-4 spouses are generally not authorized to work by default. However, since 2015, certain H-4 spouses may apply to USCIS for employment authorization (an EAD) if the H-1B principal has an approved Form I-140 or is eligible for AC21-based post-sixth-year extensions (see 8 C.F.R. § 214.2(h)(9)(iv), 8 U.S.C. § 1184(n), (r)). The H-4 must file Form I-765 and may only work upon EAD issuance; children are not eligible.
• Material change (effective October 30, 2025): DHS eliminated the automatic extension for timely-filed H-4 EAD renewal applications. H-4 spouses filing for EAD renewal on or after this date cannot rely on automatic extension and must wait for the new card. This is a significant compliance and employment planning issue for employers and foreign nationals alike.

L-2 spouses (dependents of L-1 principals):

• As of USCIS Policy Alert PA-2022-01 (January 30, 2022), L-2 spouses are considered "employment authorized incident to status" and do not require a separate EAD. I-94 admission documentation must be annotated as "L-2S" to establish work authorization. This change is codified in the I-9 employer guidance and reflected in 8 C.F.R. § 214.2(l).
• L-2 children remain ineligible to work.

E-1/E-2/E-3D spouses:

• E-1, E-2, and E-3 dependent spouses are also "employment authorized incident to status" and may work upon admission if their I-94 is properly annotated (e.g., "E-2S"). This status is recognized both under 8 C.F.R. § 214.2(e) and USCIS I-9 Central guidance. E-1/E-2/E-3 children may not work.

J-2 dependents:

• J-2 spouses and children may apply for an EAD under 8 C.F.R. § 214.2(j)(1)(v). USCIS reviews the application and may grant work authorization; it is not automatic. EAD is required before any employment; authorization is lost if the J-1’s status ends.

F-2 dependents:

• F-2 spouses and children (dependents of F-1 students) are never eligible for employment (8 C.F.R. § 214.2(f)).

Summary table:

• H-4: EAD if eligibility met; automatic EAD extension ends for renewals filed on/after October 30, 2025
• L-2: Incident to status—work permitted with valid I-94 ("L-2S")
• E-1/E-2/E-3D: Incident to status—work permitted with valid I-94 (e.g., "E-2S")
• J-2: May apply for EAD; work permitted with EAD only
• F-2: Never permitted
• Children: Not eligible in any of the above classes per regulation

Documentation note: Ensure the I-94 reflects the specific spousal annotation ("L-2S", "E-2S", "E-3D S") for incident-to-status categories. For all others, EAD documentation is mandatory.

Remain alert for regulatory or procedural changes—H-4 EAD programs and dependent spouse eligibility remain subject to ongoing administrative and litigation risks.

Source: 8 C.F.R. § 214.2 — Nonimmigrant classes Source: Update: Documentation of Employment Authorization for Certain E and L Nonimmigrant Dependent Spouses (USCIS I-9 Central)

The B-1 business visitor visa is governed by section 101(a)(15)(B) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1101(a)(15)(B), with regulatory implementation at 8 C.F.R. § 214.2(b) and detailed permissible-activities guidance in the Department of State’s Foreign Affairs Manual (9 FAM 402.2-5). B-1 status authorizes entry to the United States for specified business-related activities, but not for “employment” or productive work in the U.S. labor market.

Permissible B-1 activities — 9 FAM 402.2-5(E) The B-1 category is strictly limited to business conduct that does not constitute local employment or productive labor for hire. Permissible activities include (but are not limited to):

• Attending business meetings or consultations with U.S. business associates
• Attending scientific, educational, professional, or business conventions, conferences, or seminars
• Negotiating contracts
• Consulting with clients or customers
• Participating in short-term training (without receiving compensation from a U.S. source, other than expenses)
• Litigation (e.g., settling an estate, negotiating legal claims)
• Certain installation, service, or repair of equipment purchased from abroad, if the contract specifically requires that service and the visitor remains paid by the foreign employer (per FAM notes)

Importantly, B-1 visitors may not engage in productive or paid work, hands-on activities integral to a U.S. business, or employment for a U.S.-based entity. The exact boundary between permissible and prohibited activity is fact-intensive and turns on compensation, benefit to a U.S. entity, duration, and degree of supervision. The B-1 is not a substitute for H-1B, L-1, or other work-authorized statuses.

Compensation and “U.S. source” limit B-1 visitors may not receive salary or other remuneration from a U.S. source. However, reimbursement for travel, accommodation, or other incidental expenses is permitted. “U.S. source,” per 9 FAM 402.2-5(F), excludes cases where payment is made by a foreign employer for work that principally benefits the foreign entity.

Special B-1 subtypes — FAM and regulatory carve-outs The FAM provides for limited B-1 use in specific categories (e.g., certain professional athletes, lecturers, or artists, and the B-1 in lieu of H-1B for certain specialized workers paid and employed abroad, though this “B-1 in lieu of H” practice is narrowly applied and subject to regional interpretations and recent policy guidance). These subcategories have additional restrictions and are interpreted strictly by consulates and CBP. As of 2026, “B-1 in lieu of H” is under heightened scrutiny and should not be presumed available absent updated agency guidance.

Consequences of unauthorized work in B-1 status Engaging in unauthorized work under B-1 status can result in visa cancellation, inadmissibility, removal, and long-term bars from reentry (INA § 212(a)(6)(C)). U.S. employers and foreign entities must carefully vet planned B-1 activities to avoid “unauthorized employment.”

For global mobility leaders and cross-border employers, B-1 is limited: project work, hands-on support, production, and integrated U.S. workplace activity almost always require a work-authorized status (H-1B, L-1, etc.), not B-1. Detailed pre-travel review and documentation are essential to avoid status violations.

Source: INA § 101(a)(15)(B) — definition of B-1/B-2 visitor Source: 8 CFR § 214.2(b) — visitors Source: 9 FAM 402.2-5 — B-1 Nonimmigrant: Business Visitor

// NOTE: Scheduled update June 2026. Broken FAM source link has been replaced with current live URL. No material change in law or policy identified as of this review. Section content remains accurate as of this update.

Foreign employees authorized to work in the United States must obtain a Social Security Number (SSN) from the Social Security Administration (SSA) for payroll and tax reporting. Under 20 C.F.R. § 422.104, an SSN is required for any individual legally employed in the United States, regardless of citizenship, to facilitate wage reporting and eligibility for Social Security benefits. Eligible noncitizens—including H-1B, L-1, E, TN, F-1 OPT/STEM OPT, J-1 exchange visitors with work authorization, and permanent residents—apply for an SSN using Form SS-5 in person at an SSA field office. The individual must present original evidence of age, identity, immigration status, and employment authorization (e.g., I-94, EAD, DS-2019 or Form I-797) as detailed in SSA POMS RM 10211.420 and 10211.600.

Timing and practicalities for employers

• There is no requirement for a new hire to possess an SSN on their first day, but an application must be initiated promptly after arrival and work authorization is granted. The IRS requires employers to remit payroll taxes and file wage reports (Form W-2) using the employee’s SSN.
• For onboarding, employers should enter "Applied For" in the SSN field of Form I-9 if the new hire is waiting for issuance. Employers must not delay on-boarding a work-authorized employee solely because the SSN has not yet been assigned. SSA guidance (RM 10225.135) instructs that wages are reportable from employment start even if SSN is pending.

ITIN as substitute only where employment is NOT authorized An Individual Taxpayer Identification Number (ITIN) is available under 26 C.F.R. § 301.6109-1(d)(3)(i) only for those not eligible for an SSN—primarily nonresident aliens with U.S. tax-reporting obligations but without work authorization (e.g., certain contractors or spouses/dependents ineligible to work). ITIN cannot be used for payroll or wage-reporting of an authorized-employee. ITIN application is via IRS Form W-7 with supporting documentation. Use of an ITIN on Form W-2 or for Social Security wage reporting is a statutory violation and triggers compliance penalties.

Employer payroll and reporting obligations

• Employers must report wages to the IRS and SSA under the correct worker identifier (SSN if work-authorized; ITIN is not valid for payroll).
• If an SSN is not received by year-end, employers should file the W-2 with "Applied For" and furnish the number upon receipt (see IRS Publication 15). Failure to provide a correct SSN may result in IRS penalties, but timely application and documentation provides reasonable-cause relief.
• Practical risk: Mismatches or missing SSN entries can generate IRS and SSA notices; prompt post-arrival application and documentation retention are essential.

Source: 20 C.F.R. § 422.104 — Evidence requirements for an SSN card Source: SSA, Employer Responsibilities When Hiring Noncitizens Source: IRS, ITIN Guidance Source: IRS, Publication 15 (Employer’s Tax Guide)

The O-1 nonimmigrant visa, codified at 8 U.S.C. § 1101(a)(15)(O) and detailed in 8 C.F.R. § 214.2(o), is reserved for foreign nationals of extraordinary ability in the sciences, arts, education, business, or athletics. For global-mobility leads and cross-border employers, it is often the primary route for hiring world-class talent or enabling itinerant assignments in fields where the H-1B or L-1 is unavailable or cap-limited.

Statutory definition and scope O-1A is for sciences, education, business, and athletics; O-1B covers the arts or the motion picture/television industry. "Extraordinary ability" is defined with sector-specific tests: in sciences, business, education, or athletics, the beneficiary must demonstrate a "level of expertise indicating that the person is one of the small percentage who have risen to the very top of the field" (8 C.F.R. § 214.2(o)(3)(iii)). In the arts, "distinction" is enough—meaning a "high level of achievement in the field of arts as evidenced by a degree of skill and recognition substantially above that ordinarily encountered."

Evidentiary criteria Petitions must include evidence of either: (a) receipt of a major internationally recognized award (e.g., Nobel Prize, Oscar); or (b) at least three of eight specified alternative criteria outlined in the regulations (less for O-1B in arts), including lead roles, published material, high salary, original contributions, membership in prestigious associations, judgment of the work of others, or significant recognition. Letters from recognized experts, documentary evidence, and press coverage are central. Evidence requirements and interpretations are further specified in the USCIS Policy Manual (Vol. 2, Part M).

Employer vs. agent-petitioner models Unlike most work-authorization categories, the O-1 can be sponsored by either a traditional U.S. employer or a U.S.-based agent. Agents can file on behalf of a single employer, multiple employers, or a foreign employer locating the beneficiary in the U.S. for professional engagements—crucial for cross-border employment models, EOR arrangements, or itinerant work. Agent-petitioned O-1s must document the agency relationship and the itinerary of engagements, with contracts or summary terms required (8 C.F.R. § 214.2(o)(2)(iv)).

Validity period and extensions Initial petitions are granted for the period of the event, project, or activity (up to three years); extensions are in one-year increments. O-1 beneficiaries may work only in the capacities, locations, and with the employers specified in the petition and its itinerary annex.

For global mobility teams, the O-1 provides a high-skill, non-cap route for urgently needed or highly mobile talent. The evidentiary threshold is demanding, and agent-based models require detailed documentation, but the O-1 remains uniquely flexible for project-based U.S. work assignments outside the H-1B/L-1 silo.

Source: 8 C.F.R. § 214.2(o) — O-1 extraordinary ability Source: USCIS Policy Manual Vol. 2, Part M — O-1 Nonimmigrant Status

A non-U.S. citizen or national who is not physically present in the United States and works remotely for a U.S.-based employer generally does not require U.S. work authorization, as the jurisdictional reach of U.S. immigration law—including the Immigration Reform and Control Act (IRCA) and its Form I-9 employment-verification regime—applies only to employment physically performed within the United States. The IRCA statute at 8 U.S.C. § 1324a(a) prohibits the employment of unauthorized aliens “in the United States.” USCIS guidance explicitly states that Form I-9 requirements apply only to individuals physically working in the U.S.; for remote employees abroad, the employer is not required to complete Form I-9.

The location of payroll or employer incorporation is immaterial; actual work performed on U.S. soil triggers I-9 obligations regardless of entity location, while work performed from abroad does not. This is confirmed by the USCIS I-9 Central FAQ: “Do I complete Form I-9 for employees who will work only outside the United States?”—to which USCIS answers, “No. You do not complete Form I-9 for such individuals.” The same rule applies even if the worker is a U.S. citizen or otherwise eligible to work in the U.S.; the governing factor is the place of employment activity, not nationality or employer domicile. If the employee will later relocate to the United States—temporarily or permanently—to perform services, the employer must complete Form I-9 within three business days of that individual’s first day of employment physically in the U.S., regardless of previous remote or offshore service.

However, U.S. tax, labor, and social-insurance obligations may be triggered by wage payment, permanent establishment risk, or local employment law at the place of actual work. Cross-border employers must separately analyze host-country right-to-work and payroll compliance for remote staff performing work from outside the U.S.—U.S. immigration law neither authorizes nor prohibits the arrangement.

In summary: For remote employees (of any nationality) working outside the United States, U.S. work-authorization and I-9 requirements do not attach while the individual remains abroad. Careful tracking is warranted for any U.S. travel with intent to work, as arrival physically triggers immigration and I-9 duties.

Source: USCIS I-9 Central FAQ: "Do I complete Form I-9 for employees who will work only outside the United States?" Source: 8 U.S.C. § 1324a — Unlawful employment of aliens

Section 212(a)(9)(B) of the Immigration and Nationality Act (INA), codified at 8 U.S.C. § 1182(a)(9)(B), creates two principal grounds of inadmissibility—commonly called the "3-year bar" and "10-year bar"—targeting foreign nationals who accrue “unlawful presence” in the United States and then depart. For global mobility and cross-border employment leads, the rule is a critical compliance exposure: periods of unauthorized stay by workers, trailing spouses, or children can trigger multi-year bars on returning to the U.S., blocking future assignments or transfers.

Definition: "Unlawful presence" (ULP)

• Per the statute and DHS/State policy, “unlawful presence” means days in the U.S. after the expiration of an authorized period of stay (as specified on Form I-94) or days present without being admitted/paroled or without maintaining lawful status. Not all violations count—e.g., timely filed extension/adjustment applications may toll or pause unlawful presence (consult 9 FAM 302.11).

The 3-year and 10-year bars — statutory triggers

• If an individual accrues more than 180 days but less than one year of unlawful presence during a single stay, then departs before formal removal proceedings are initiated, they are inadmissible for 3 years from their date of departure (INA § 212(a)(9)(B)(i)(I)).
• If unlawful presence exceeds one year during a single stay, the bar is 10 years from departure (INA § 212(a)(9)(B)(i)(II)).
• Crucially, these bars are only triggered by a departure after accruing a threshold amount of unlawful presence; remaining in the U.S. without departing does not itself give rise to the bar, but can trigger other removal grounds.

Who is affected?

• The bars apply to most non–U.S. citizens, including work-authorized and dependent nonimmigrants (H, L, E, F, J, O, etc.) whose status lapses or who violate status (by unauthorized work, overstay, or untimely petition filings). Minors (under age 18) generally do not accrue ULP under statute.

Computation and agency guidance

• ULP accrual generally starts the day after the period of authorized stay defined by the most recent I-94 ends (not the visa expiration date), or upon a formal overstay or unauthorized status determination in removal proceedings. Pending, non-frivolous extension or change applications may toll ULP for up to 120 days (see 8 CFR § 214.1). USCIS and DOS guidance articulate further exceptions and clarify calculation details (see referenced sources).

Waivers and exceptions

• Certain individuals may seek a waiver of inadmissibility on grounds of extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent by filing Form I-601. Eligibility for waivers is restricted and fact-intensive. Some adjustment and VAWA applicants may benefit from further relief.

Practical traps for global mobility teams

• Most assignment managers miss the significance of unlawful presence for dependents. A dependent child who overstays (after age 18) can trigger the bars. Foreign employees switching from work authorization to a new status, or terminating U.S. employment without departing or adjusting, risk accruing ULP.
• Future visa processing, consular appointments, and border entry are all jeopardized if these bars attach. Global-mobility teams should track I-94s rigorously and document all petitions, extensions, and departures.

Source: 8 U.S.C. § 1182(a)(9)(B) — Unlawful presence bars Source: USCIS Policy Manual, Vol. 8, Part B, Ch. 3 — Unlawful Presence Source: 9 FAM 302.11-2(B) — Interpreting ULP for Consular Processing

The H-2A and H-2B visa categories continue to permit U.S. employers to sponsor foreign nationals for temporary labor when insufficient U.S. workers are available. H-2A is for temporary or seasonal agricultural work, while H-2B covers temporary non-agricultural roles. However, regulatory changes since December 2024 impose new, material compliance obligations for employers—most notably a DHS final rule (eff. December 18, 2024) modernizing both H-2A and H-2B requirements, and a FY 2026 H-2B supplemental cap rule for the period January 30 – September 30, 2026.

H-2A (Temporary Agricultural Workers) – Regulatory Modernization (Dec 2024)

• 8 U.S.C. § 1101(a)(15)(H)(ii)(a) defines eligibility. The Department of Labor's H-2A rules (20 CFR 655 Subpart B, as updated by DHS Final Rule 89 FR 103202 Dec 18, 2024) now require employers to not only demonstrate seasonal or temporary agricultural need, but also to provide expanded documentation supporting the unavailability of U.S. workers. Enhanced obligations regarding disclosure, housing, recordkeeping, and cooperation with DHS and DOL compliance audits are now in force for all labor certifications filed post-2024.

H-2B (Temporary Non-Agricultural Workers) – FY 2026 Supplemental Cap and Attestations

• 8 U.S.C. § 1101(a)(15)(H)(ii)(b) and 20 CFR 655 Subpart A govern eligibility and requirements. For January 30 – Sept 30, 2026, DHS and DOL have, via interim final rule (91 FR 4452, Feb 3, 2026), authorized up to 64,716 supplemental H-2B visas (in addition to the longstanding 66,000 annual cap). Employers requesting these must now:
• File an attestation describing potential irreparable harm if H-2B workers are unavailable (per 20 CFR 655.64 and new 8 CFR 214.2(h)(6)(xvi)),
• Document prior H-2B status usage for returning worker eligibility,
• Affirm cooperation with any DHS/DOL compliance review—including responding to audits and providing necessary records.
• Meet new recruitment and non-displacement rules (see 91 FR 4452 and related agency guidance).

Compliance Risks and Enforcement

• Both programs restrict employment authorization to the named employer, specific location, and contract dates. The revised rules materially expand recordkeeping, anti-retaliation protections, and administrative sanctions (see 20 CFR 655.182 for H-2A and 20 CFR 655.73 for H-2B). Violations can result in debarment, civil penalties, and permanent loss of access to these visa programs.

Summary of Material Change

• _Effective December 18, 2024, H-2A/H-2B regulations impose new cooperation and attestation requirements on all labor certifications. For H-2B specifically, the supplemental FY 2026 visas require employer attestation and compliance-readiness under 91 FR 4452 (Feb. 3, 2026)._

Employers sponsoring H-2A or H-2B workers for FY 2026 and beyond must review these rules before filing.

Source: 8 U.S.C. § 1101(a)(15)(H)(ii) — H-2A/H-2B definitions Source: 20 CFR 655 Subpart B — H-2A, as amended Source: 20 CFR 655 Subpart A — H-2B, as amended Source: USCIS H-2 Small Entity Compliance Guide (2025) Source: 91 FR 4452 (Feb. 3, 2026) — Temporary Increase in H-2B Nonimmigrant Visas for FY 2026

The Labor Condition Application (LCA) is a required attestation and compliance framework for all U.S. employers sponsoring nonimmigrant workers in the H-1B and E-3 categories. Enacted via 8 U.S.C. § 1182(n) and implemented by Department of Labor regulations at 20 C.F.R. §§ 655.730–655.760, the LCA operates to protect U.S. labor standards and establish statutory obligations for employers before and during foreign worker sponsorship.

Wage attestation duties

• Employers must attest that each sponsored worker will be paid the greater of: (1) the prevailing wage for the occupational classification in the intended area of employment, as determined by the Department of Labor or an authoritative source, or (2) the actual wage paid to similarly employed workers at the worksite (8 U.S.C. § 1182(n)(1)(A); 20 C.F.R. § 655.731).
• Wage obligations begin no later than the date indicated on the approved petition (Form I-797) or when the worker is first eligible to work, not upon mere filing. Benching or nonproductive status outside limited regulatory exemptions (such as bona fide voluntary leave) is prohibited; the obligation to pay the required wage persists during most nonproductive periods triggered by the employer (20 C.F.R. § 655.731(c)(7)).
• Material changes to job location outside the original area of intended employment will require a new LCA and re-posting to stay compliant.

Notice and posting requirements

• Employers must provide notice of the LCA filing to the collective bargaining representative, if any, or otherwise must post notice at the worksite in at least two conspicuous locations (20 C.F.R. § 655.734). If all or part of the workforce works remotely, electronic posting is permitted but must be reasonably accessible to all affected workers at the place of employment.
• Notice must be provided on or before the LCA filing date and remain up for at least 10 business days.

Public access file and recordkeeping

• Employers are required to create a public access file (PAF) at their principal place of business or worksite within one working day of filing the LCA (20 C.F.R. § 655.760). Mandatory PAF contents include: (1) a copy of the certified LCA, (2) documentation of the wage rate to be paid and method/system used to determine actual wage, (3) prevailing wage source and rationale, (4) summary of benefits offered to U.S. and H-1B/E-3 workers, (5) posting/notice documentation, and (6) any documentation relating to H-1B dependency or willful violator status, if applicable.
• The PAF must be retained for at least one year beyond the expiration of the LCA or until the conclusion of any DOL complaint proceeding, whichever is later. Employers must also retain payroll records for all similarly employed workers for the duration of the LCA and a specified period under Department of Labor rules.

Enforcement and penalties

• The DOL may assess back wages, civil money penalties, and—if violations are found—can debar employers from H-1B and E-3 sponsorship. Penalty amounts are subject to periodic inflation adjustments published by DOL rather than a fixed statutory figure (20 C.F.R. § 655.810).

LCA compliance underpins lawful H-1B and E-3 sponsorship. Every step—wage calculation, worksite notice, and documentary record—is tightly regulated and is subject to DOL audit and public inspection.

Source: 8 U.S.C. § 1182(n) — LCA wage and notice requirements Source: 20 C.F.R. §§ 655.730–655.760 — LCA regulations