Employment-based immigrationEmployer Sponsorship in 2026: H-1B, PERM, I-140, EB-2 and EB-3

What employers must manage during H-1B, PERM, I-140, EB-2, and EB-3 sponsorship

Employer sponsorship in the United States involves several separate procedures. H-1B governs temporary employment under approved wage, position, and worksite conditions. Permanent Employment Certification, commonly called PERM, tests a permanent job opportunity and the availability of qualified U.S. workers. Form I-140 asks U.S. Citizenship and Immigration Services, or USCIS, to classify the worker in an employment-based immigrant category. Form I-485 or consular processing is the final permanent-residence stage when an immigrant visa is available.

How H-1B, PERM, Form I-140, and permanent residence differ

Approval at one stage does not automatically establish eligibility at the next. A certified PERM application does not require USCIS to approve Form I-140, and an approved Form I-140 does not guarantee approval of Form I-485 or an immigrant visa.

Important H-1B and prevailing-wage developments in 2026

FY 2027 H-1B cap selection uses wage-level weighting

A Department of Homeland Security final rule effective February 27, 2026 introduced weighted selection for the fiscal year 2027 H-1B cap. When properly submitted registrations exceed the cap, a beneficiary assigned to Occupational Employment and Wage Statistics, or OEWS, Level I receives one entry in the selection pool; Level II receives two; Level III receives three; and Level IV receives four. Higher levels receive a greater chance of selection, but Level I registrations remain eligible. Federal Register final rule

USCIS completed the initial FY 2027 selection process after receiving enough registrations to reach the regular cap and the U.S. advanced-degree exemption. Selection permits the petitioner to file during the period stated in the selection notice. It does not establish that the H-1B petition satisfies the specialty-occupation, wage, employer, worksite, or beneficiary requirements. USCIS selection notice

New OEWS wage data became effective on July 1, 2026

The Office of Foreign Labor Certification, or OFLC, published the 2026–2027 OEWS wage files for the period from July 1, 2026 through June 30, 2027. The files are based on Bureau of Labor Statistics May 2025 wage estimates and continue to use the 2018 SOC structure. Employers preparing a new LCA, Prevailing Wage Determination request, or PERM strategy after July 1 should use the wage information applicable to the filing and location rather than a saved result from the previous wage year. OFLC wage data

The DOL prevailing-wage change remains a proposed rule

On March 27, 2026, DOL published a proposed rule that would revise the calculation of the four OEWS wage levels used for H-1B, H-1B1, E-3, and PERM cases. As of July 10, 2026, the proposal has not become a final rule. Employers must continue using the current wage system and should not replace an issued Prevailing Wage Determination, or PWD, or a current LCA wage calculation with the proposed methodology. DOL proposed rule

Selected premium processing fees increased on March 1, 2026

The premium processing fee is $2,965 for an eligible H-1B request submitted on Form I-907 with Form I-129 and for eligible Form I-140 classifications when the premium request is filed on or after March 1, 2026. The amount is not a universal premium fee for every Form I-129 category or every USCIS benefit because some classifications use different fees or processing periods. USCIS fee update

The $100,000 H-1B payment guidance was vacated

On June 8, 2026, the U.S. District Court for the District of Massachusetts vacated agency guidance that implemented a $100,000 payment requirement for certain H-1B petitions in State of California v. Mullin, No. 1:25-cv-13829. USCIS states that the Department of Homeland Security is complying with the order while considering further action. Employers should rely on the current Form I-129 instructions and USCIS alerts rather than a fee checklist prepared before the court ruling. USCIS Form I-129

H-1B employer obligations: wages, nonproductive time, worksites, and records

The required wage is the higher of two amounts

• Actual wage: the wage the employer pays employees with similar experience and qualifications for the specific employment, based on objective factors such as education, experience, responsibilities, specialized knowledge, and performance.
• Prevailing wage: the applicable market wage for the occupation in the area of intended employment, determined through an acceptable wage source.

The employer must pay the higher amount. A worker’s agreement to accept less does not waive the LCA requirement. A deduction, reimbursement, or payment arrangement that reduces the worker’s effective compensation below the required wage may create back-wage liability. 20 CFR 655.731

Employer-caused nonproductive time is generally paid

If the worker cannot perform duties because a project ended, a client delayed an assignment, the employer lacks billable work, the employer has not provided access or equipment, or another employer-related circumstance prevents productive work, the required wage generally continues. The client’s refusal to pay the employer does not eliminate the employer’s wage obligation.

A different rule may apply when the worker voluntarily requests unpaid time for personal reasons or cannot work because of a circumstance unrelated to employment, provided the arrangement complies with the LCA rules and applicable employment law. The employer should document the reason, dates, and supporting records rather than using a generic “bench” label. DOL Fact Sheet 62I

Remote work and client-site changes require a worksite analysis

A move within the same area of intended employment may require a new LCA notice even when an amended petition is not required. A move outside the covered area may require a new LCA and an amended Form I-129 unless a limited short-term placement rule or another exception applies. The employer should review the Metropolitan Statistical Area, or MSA, the normal commuting area, the assignment’s duration, and whether the location is treated as a worksite under DOL rules.

A home used for regular remote work is not automatically exempt. The employer must determine whether the home is covered by the certified LCA and whether the required notice was provided. Approval from a manager or human-resources department does not replace the immigration worksite analysis. 20 CFR 655.735

Public Access File

The Public Access File, or PAF, must be available to the public within one working day after the LCA is filed. It is generally kept at the employer’s principal place of business in the United States or at the applicable place of employment.

The PAF should not contain Social Security numbers, passports, medical information, privileged communications, or detailed salary information about other employees. Payroll, hours, deductions, benefits, and actual worksite records should be maintained separately.

Public-access records are generally retained for one year beyond the last date on which an H-1B worker was employed under the LCA. If no worker was employed under the LCA, the records are generally retained for one year after the LCA expired or was withdrawn. Payroll records are generally retained for at least three years from creation, and relevant records must remain available while an investigation is pending. 20 CFR 655.760

PERM: employer-paid costs, recruitment steps, and supporting records

An employer may not seek or receive payment from the beneficiary for activities connected with obtaining permanent labor certification. This includes mandatory recruitment expenses and attorney fees for legal services performed for the employer during the PERM process. 20 CFR 656.12

• The employer pays the State Workforce Agency, or SWA, job order and required advertising expenses.
• The employer pays for legal work involving the position, recruitment strategy, applicant review, recruitment report, and Form ETA-9089.
• The employer should not recover those costs through wage deductions, reduced bonuses, surrendered leave, unpaid work, goods, services, or a repayment clause triggered by resignation.
• A beneficiary may retain separate counsel for personal advice, but beneficiary funds should not be used for the employer’s recruitment or attestations.

The PERM process begins with the real position

Recruitment for professional occupations

The recruitment dates must be calculated separately for each step. Nonprofessional occupations use a different external recruitment framework and do not require the three additional professional methods.

Applicant review, layoffs, and unusual requirements

The employer must evaluate applicants under the minimum requirements stated in recruitment. The audit file should preserve résumés, applications, contact attempts, interview notes, applicant communications, and a specific reason for each rejection.

If the employer experienced layoffs in the occupation or a related occupation in the area of intended employment during the six months before filing, it may have to notify and consider potentially qualified laid-off U.S. workers. The record should identify the affected occupation, location, dates, notice efforts, responses, and job-related reasons for rejection.

Requirements involving a foreign language, combined occupations, extensive travel, alternative education or experience, or qualifications beyond the occupation’s normal requirements may require business-necessity evidence. Familial relationships, ownership interests, and other circumstances affecting whether the job is genuinely open to U.S. workers must also be disclosed and supported.

A complete file does not cure an unlawful recruitment decision. The employer’s actual conduct must match the documents, and the position must remain a genuine permanent full-time job opportunity. 20 CFR 656.17

Form I-140: EB-2, EB-3, worker qualifications, and ability to pay

A certified PERM application does not compel USCIS to approve Form I-140. USCIS independently reviews the requested category, the permanent position, whether the beneficiary met the certified requirements by the required date, whether the job offer remains genuine, and whether the employer has been able to pay the offered wage.

The category follows the genuine minimum requirements of the job. A worker’s advanced education or lengthy experience does not create an EB-2 case when the certified position requires only EB-3-level qualifications.

Ability to pay begins at the priority date

In a PERM-based case, the priority date is generally the date DOL accepts Form ETA-9089 for filing. The employer must establish the ability to pay the offered wage from that date until the beneficiary becomes a permanent resident. Required initial evidence generally includes an annual report, federal tax return, or audited financial statement. USCIS may also consider wages already paid, net income, net current assets, a qualifying financial-officer statement for a company with at least 100 workers, and evidence of the employer’s broader financial circumstances. USCIS ability-to-pay policy

For example, if the offered wage is $120,000 and the beneficiary received $105,000 during a relevant period, the $15,000 difference is only the initial calculation. The employer must still submit acceptable evidence showing the capacity to cover that difference for the applicable financial year. USCIS may examine the tax period, payroll dates, net income, net current assets, and the complete financial record.

When the employer has filed several Forms I-140, USCIS may assess the combined wage obligations for overlapping periods. The same amount of net income cannot automatically be treated as separately available for every sponsored worker.

Three separate rules use a 180-day period

These periods serve different purposes and are not interchangeable. The certified PERM filing deadline does not create AC21 portability, and priority-date retention does not by itself preserve a permanent job offer.

EB-2 National Interest Waiver does not follow the standard PERM route

An EB-2 National Interest Waiver, or NIW, remains part of the EB-2 category but generally waives the permanent job-offer and labor-certification requirements. A qualifying applicant may self-petition and does not need an employer to conduct PERM recruitment.

The applicant must first qualify for EB-2 through an advanced degree or exceptional ability. USCIS then applies the three-part framework from Matter of Dhanasar:

• The proposed endeavor has substantial merit and national importance.
• The applicant is well positioned to advance the proposed endeavor.
• On balance, it would benefit the United States to waive the job-offer and labor-certification requirements.

NIW is therefore not another stage of the employer’s PERM case. It permits self-petitioning, uses a different evidentiary standard, and does not transfer the employer’s recruitment obligations to the applicant.

Government fees and who is responsible for paying them

USCIS fees depend on the form, filing type, employer size, nonprofit status, classification, and statutory exemptions. The exact payment package should be calculated from the current USCIS Fee Schedule immediately before filing.

The fees are not automatically added to every petition. An extension with the same employer, a change of employer, a cap-exempt petition, and an initial cap filing may require different combinations and exemptions.

Premium processing requires USCIS to take a qualifying action within the applicable period. That action may be an approval, request for evidence, notice of intent to deny, or denial.

Employer expenses and worker expenses must be separated

• The employer must pay: mandatory PERM recruitment, employer-side PERM legal work, the H-1B ACWIA fee, and the H-1B Fraud Prevention and Detection Fee.
• Case-specific review is needed: Form I-140 filing fees, the Asylum Program Fee, employer-side I-140 legal work, and optional expedited processing.
• The worker may generally pay personal expenses: Form I-485, medical examination, immigrant-visa processing, personal counsel, and derivative-family expenses.
• Any worker payment affecting H-1B compensation: the payment must not reduce the worker below the required wage or transfer an expense that legally belongs to the employer.

What the employer must do when H-1B employment ends

An internal termination letter does not necessarily end all H-1B obligations. The employer should clearly end the employment relationship, notify USCIS, complete the final wage review, address return transportation when required, and preserve the supporting records.

Reasonable return transportation generally concerns the principal H-1B worker. It does not automatically include tickets for family members, shipment of property, hotel expenses, or a full relocation package. The federal transportation obligation generally does not arise when the employee voluntarily resigns, although an employment agreement or state law may create separate duties.

The 60-day grace period is discretionary

Under 8 CFR 214.1(l)(2), the Department of Homeland Security may allow an H-1B worker up to 60 consecutive calendar days after employment ceases, or until the end of the authorized validity period, whichever is shorter. The government may shorten or decline to provide that period. The grace period does not independently authorize employment. 8 CFR 214.1

During an available grace period, the worker may seek a qualifying change of employer, request another nonimmigrant status, file Form I-485 if independently eligible, or prepare to depart. An eligible H-1B worker may be able to start work for a new employer after that employer properly files a qualifying H-1B change-of-employer petition. A worker who does not satisfy the portability requirements may have to wait for approval. USCIS H-1B portability guidance

Form I-140 withdrawal, priority dates, and AC21 job portability

Withdrawal of an H-1B petition and withdrawal of Form I-140 are separate actions. Ending temporary employment also does not automatically determine whether the permanent job offer remains available. The result depends on the status of Form I-140, the relevant 180-day period, whether Form I-485 is pending, and whether the applicant has a qualifying new permanent job offer.

Retaining a priority date is different from preserving the original job offer. An applicant may keep the earlier priority date but still need a new petition or a valid AC21 portability request to complete the permanent-residence case. USCIS job-portability policy

AC21 portability requires a qualifying new position

The American Competitiveness in the Twenty-first Century Act, commonly called AC21, permits certain employment-based applicants to move to a new permanent full-time job in the same or a similar occupational classification after Form I-485 has been pending for at least 180 days. The underlying Form I-140 must be approved or capable of approval based on the facts and evidence existing when it was filed.

USCIS may compare job duties, required skills, education, experience, SOC codes, wages, seniority, responsibility, and career progression. Different job titles or higher compensation do not automatically prevent portability. The evidence should show that the new position remains connected to the original occupation through substantially related duties, skills, and levels of responsibility.

Form I-485 Supplement J is generally used to confirm that the original job remains available or to request portability to a qualifying new position. The submission should identify the original PERM and I-140 position, describe the new job, and explain why the occupations are the same or similar. USCIS Form I-485 Supplement J

Form I-485 requires eligibility, admissibility, and a favorable discretionary decision

An approved Form I-140 and an available immigrant visa number do not automatically entitle an applicant to adjustment of status. USCIS must determine that the applicant satisfies the applicable requirements of Immigration and Nationality Act section 245, remains eligible through the employment-based petition or a qualifying new job offer, and is not barred from adjusting status. Employment-based applicants with status violations or unauthorized employment may also require analysis under section 245(k).

Admissibility is reviewed separately from the employer petition

USCIS examines grounds of inadmissibility that may involve immigration violations, fraud or misrepresentation, criminal history, health-related grounds, security concerns, and other statutory issues. Approval of the employer’s Form I-140 does not resolve these personal eligibility questions.

USCIS policy issued in May 2026 emphasizes discretion

USCIS Policy Memorandum PM-602-0199, dated May 21, 2026, states that adjustment of status is discretionary relief rather than an automatic result of meeting the basic filing requirements. An officer must review the complete record and determine whether the positive factors support approval despite any negative considerations. USCIS Policy Memorandum PM-602-0199

• An approved Form I-140 does not guarantee approval of Form I-485.
• AC21 portability does not remove admissibility or discretionary review.
• Employment authorization or advance parole issued while Form I-485 is pending is not approval of permanent residence.
• Consular processing avoids the Form I-485 procedure but still requires category eligibility, admissibility, supporting documents, and an available immigrant visa number.

Employer controls that prevent conflicts between immigration records

Many compliance problems arise because individual documents appear reasonable but describe different jobs, salaries, or locations. A salary change, remote-work approval, promotion, transfer, leave, or termination should reach the immigration team before the company implements the change.

Common conflicts that require correction

• The employee works regularly at a location not covered by the LCA.
• Payroll falls below the required wage during a client delay or internal project gap.
• PERM advertisements describe requirements that differ from Form ETA-9089.
• The beneficiary did not possess the required education or experience by the priority date.
• The employer’s financial evidence does not cover all overlapping sponsored wage obligations.
• An AC21 submission describes the new job without comparing it to the original PERM and Form I-140 position.
• The employer ends H-1B employment but delays USCIS withdrawal or fails to address return transportation.

Related guidance on employment-based immigration

• How to transition from H-1B status to an employment-based green card

  How H-1B status, PERM, Form I-140, the Visa Bulletin, and the final permanent-residence stage interact.

• PERM in 2026: PWD, recruitment, ETA-9089, audit, and I-140

  A detailed explanation of the labor-certification process and employer recruitment obligations.

• Form I-140 immigrant petition

  Classification, worker qualifications, supporting evidence, employer filing, and USCIS review.

• Employer-sponsored EB-2

  Advanced-degree and exceptional-ability cases involving a permanent employer-sponsored position.

• EB-2 National Interest Waiver

  EB-2 eligibility, self-petitioning, the Dhanasar standard, and the waiver of PERM and the job-offer requirement.

• EB-3 for professionals, skilled workers, and other workers

  EB-3 subcategories, permanent job requirements, PERM, and supporting evidence.

• AC21 and same-or-similar job analysis

  How USCIS compares duties, skills, SOC codes, wages, seniority, and career progression.

• Form I-485 Supplement J filing

  Confirming the original job offer or requesting portability to a new permanent position.

• DOL prevailing wage proposal for 2026

  How the proposed methodology could affect H-1B, PERM, EB-2, and EB-3 if a final rule is issued.

Frequently asked questions about employer sponsorship

Official legal and government sources