Sponsoring an H-1B employee involves far more than filing a petition with USCIS. It creates an ongoing compliance framework governed by both the Department of Labor (DOL) and USCIS, with increasing coordination between the two agencies in recent years. Employers are expected to maintain proper documentation, follow wage and posting requirements, and take specific steps when the employment relationship ends.

In our practice, many of the issues that arise are not due to intentional violations, but rather incomplete processes or misunderstandings about ongoing obligations. Below is a practical overview of the key areas employers should be paying attention to.

The Labor Condition Application (LCA)

The LCA is the foundation of the H-1B process. When an employer files an LCA, it is making binding attestations regarding wages, working conditions, and the impact on U.S. workers. These attestations continue throughout the entire period of H-1B employment.

In particular, the employer is committing to pay at least the higher of the prevailing wage or the actual wage paid to similarly situated employees. This obligation continues even during periods where there may be a lack of work. The concept of “benching” an H-1B employee without pay due to project gaps or internal delays is not permitted and is a frequent source of DOL enforcement actions.

Because of the increasing alignment between USCIS and DOL, inconsistencies between the role described in the petition and the wage level selected on the LCA are also receiving greater scrutiny, particularly in the context of site visits and petition extensions.

Notice of Filing

Employers are required to provide notice of the LCA filing to workers at the job site. This is typically done through a Notice of Filing (NOF), which must be posted for at least 10 consecutive business days in two conspicuous locations at the worksite, or distributed electronically in a manner accessible to affected employees.

Public Access File (PAF)

Each H-1B petition requires a corresponding Public Access File, which must be created within one working day of filing the LCA and made available upon request. The PAF is not simply a formality; it is often the first document reviewed in a DOL investigation. It must include the certified LCA, a clear explanation of how the wage was determined, documentation of the posting requirement, and a summary of benefits offered to U.S. workers in similar roles.

A common issue we see is that employers maintain some of these documents, but not in a centralized or organized manner. From a compliance standpoint, the expectation is that the file is complete, accessible, and ready to be produced quickly if requested.

USCIS Site Visits

In recent years, USCIS has significantly increased worksite enforcement through its Fraud Detection and National Security (FDNS) directorate. Site visits are often unannounced and are used to verify that the information in the H-1B petition is accurate and consistent with actual working conditions. During a site visit, an officer may ask to speak with HR personnel, a manager, or the H-1B employee directly. They will typically confirm details such as job title, job duties, work location, salary, reporting structure, and whether the employee is working at a third-party client site.

One of the most important aspects of site visit compliance is consistency. The information provided during the visit should align with the H-1B petition, the LCA, and the Public Access File. Discrepancies, particularly around job duties or level of responsibility, can trigger follow-up inquiries or even lead to petition revocation in more serious cases.

Employers should ensure that key personnel know how to respond to a site visit, where relevant documents are stored, and who to contact internally or externally if an officer arrives. Even a well-prepared company can run into issues if front-line staff are unsure how to handle the situation.

H-1B Amendments

One of the most commonly misunderstood areas of H-1B compliance is when an amendment is required. The regulations require employers to file an amended petition when there is a “material change” in the terms and conditions of employment. While the term is not precisely defined, USCIS guidance and enforcement trends provide a fairly clear framework.

A change in work location is one of the most frequent triggers. If an H-1B employee moves to a new geographic area outside the original LCA coverage, a new LCA and an H-1B amendment will be required before the move takes place. This has become especially relevant with the rise of remote and hybrid work arrangements.

Changes in job duties can also require an amendment, particularly if they alter the nature or complexity of the role in a meaningful way. For example, a shift from an individual contributor role to a supervisory or managerial position may be viewed as material. Similarly, significant changes in tools, technologies, or the underlying business function can raise questions if not properly addressed.

Promotions present a nuanced issue. Not every promotion requires an amendment, but where the promotion changes the core nature of the position or moves the role into a different occupational classification or wage level, an amendment is often advisable. Given the current environment of increased scrutiny, especially around SOC codes and wage levels, it is generally safer to take a conservative approach.

From a compliance perspective, the key is timing. Amendments should be filed before the change takes effect. Delays or retroactive filings can create risk, particularly if the change is identified during a site visit or in a subsequent petition filing.

Termination of H-1B Employment

Ending the employment of an H-1B worker requires additional steps beyond a typical termination. To properly end wage obligations, the employer must take affirmative actions that constitute what is known as a “bona fide” termination. This includes notifying the employee of the termination, informing USCIS to withdraw the H-1B petition, and offering to cover the reasonable cost of return transportation to the employee’s last place of foreign residence if the termination is involuntary.

If these steps are not completed, the employer may remain liable for wages even after the employee is no longer working. This is an area where we frequently see risk, particularly where the petition withdrawal step is overlooked. As a best practice, employers should also withdraw the LCA with the DOL, even though it is not strictly required. Doing so helps clearly document the end of the employment relationship and reduces the likelihood of future disputes.

Final Thoughts

H-1B compliance is an ongoing obligation that extends well beyond the initial filing. As enforcement trends continue to evolve, particularly with increased coordination between USCIS and the DOL, employers should expect a higher level of scrutiny across all aspects of the program.

The most common issues we see tend to arise from gaps in process rather than intent—missed postings, incomplete Public Access Files, inconsistent job descriptions, or incomplete termination steps. Taking a structured and proactive approach to compliance can help avoid these issues and ensure smoother outcomes for both the company and the employee. For employers managing H-1B workers, periodic internal reviews of compliance practices can be a valuable step, particularly in light of recent enforcement trends and the increasing use of site visits as a verification tool.

By: Rebecca Chen

Rebecca Chen is a Partner at Reddy Neumann Brown. Her representation includes advising clients throughout the non-immigrant and immigrant visa application process, from initial filing, responding to various requests for evidence, and processing at overseas consulates. Her years of experience in the immigration field have made her a knowledgeable resource for complex business immigration matters.