Building a Compliant Foreign Hiring Program: H-1B, O-1, and L-1 for Startups

Samper Law in collaboration with Kloss Martino

Accurate as of

September 25, 2026

Most startups do not need immigration counsel on retainer for every hire, but they do need counsel for each employer-sponsored petition (H-1B, O-1, L-1) and for setting up the compliance systems those petitions create, because the company signs the attestations and carries the liability. Form I-9 and E-Verify can usually be run in house after a careful setup and periodic audits; H-1B wage strategy, labor condition applications and public access files, O-1 evidence, and new office L-1 petitions are where one mistake can cost the hire, draw a denial without a Request for Evidence, or open a Department of Labor investigation.

What does a compliant foreign hiring program include?

Form I-9 for every employee, citizen or not, and E-Verify where required or chosen.
A visa pathway decision for each foreign hire: H-1B, O-1, L-1, or another category the person's nationality allows.
Labor condition application (LCA) and public access file discipline for every H-1B worker.
A calendar of status expirations, extensions, and cap season dates.
A cost model that reflects 2026 fees and the proposals still pending.
A response plan for ICE and Department of Labor inquiries.

H-1B: how the lottery works now

The H-1B cap is 65,000 new petitions a year, plus 20,000 for holders of U.S. master's or higher degrees (INA 214(g)(1)(A) and (g)(5)(C)). Cap-subject employers must first submit an electronic registration, which costs $215 (8 CFR 106.2).

Selection is now wage-weighted. DHS's final rule (90 FR 60864, Dec. 29, 2025) took effect February 27, 2026 and first applied to the FY 2027 registration season. Each unique beneficiary is entered into the selection pool once at OEWS wage level I, twice at level II, three times at level III and four times at level IV. Where a beneficiary would work in more than one position or location, the registration must use the lowest equivalent wage level. The rule also applies to registrations for the advanced degree exemption. For a startup, the wage level you offer now changes your odds, not only your cost.

The $100,000 proclamation payment. Proclamation 11069 (91 FR 60497) extended Proclamation 10973 through September 21, 2027. It attaches to H-1B workers outside the United States. The agency actions imposing the payment were vacated in State of California v. Mullin, No. 1:25-cv-13829 (D. Mass., June 8, 2026); the First Circuit denied a stay on July 24, 2026, and the appeal is pending. USCIS states it is complying with the court order and still plans to collect if the order is lifted. See our September 25 analysis.

The proposed $103,265 fee. DHS has proposed a $103,265 fee, payable at filing, on every cap-subject H-1B petition, including change of status filings and the master's cap (91 FR 54817, Aug. 25, 2026). The comment period closed September 24, 2026. It is proposed, not in effect. See our analysis of the proposed fee.

Wages. The Department of Labor proposed higher prevailing wage levels for H-1B and PERM on March 27, 2026 (RIN 1205-AC30). It is proposed only.

Ordinary fees today for a startup with 25 or fewer full-time equivalent employees: Form I-129 at $460 (standard $780), Asylum Program Fee $300 (standard $600), ACWIA training fee $750 (standard $1,500), and a $500 fraud prevention and detection fee on initial petitions and changes of employer (8 CFR 106.2; INA 214(c)(9) and (c)(12)). Premium processing is $2,965 (91 FR 1059).

O-1: when the lottery is not the answer

The O-1A has no annual cap, which makes it the first alternative for a startup's senior engineers, researchers and business leaders. The beneficiary must show a major internationally recognized award or at least three of eight criteria: prizes, selective memberships, published material about the person, judging others' work, original contributions of major significance, scholarly authorship, a critical role at a distinguished organization, and high remuneration (8 CFR 214.2(o)(3)(iii); USCIS Policy Manual, Vol. 2, Part M, Ch. 4).

Meeting three criteria is only step one; USCIS then weighs the whole record. Two points help startups. Comparable evidence is allowed where a criterion does not readily apply, and the Policy Manual gives the example of "highly valued equity holdings in the startup" as comparable to the high salary criterion. An O beneficiary "may not petition for himself or herself," so the petition comes from a U.S. employer or agent. The I-129 fee is $1,055 ($530 for 25 or fewer FTE), plus the Asylum Program Fee.

L-1: moving people from an affiliated company abroad

If the startup has a parent, subsidiary or affiliate abroad, the L-1 transfers employees who worked there for one continuous year within the three years before filing. A new office L-1A is possible, with conditions stated in 9 FAM 402.12 and 8 CFR 214.2(l)(3)(v): sufficient physical premises must already be secured, and the U.S. operation must, within one year of approval, support an executive or managerial position. USCIS approves a new office petition "for a period not to exceed one year, after which the petitioner must demonstrate to USCIS that it is doing business." The first extension is the real test: the company must show regular operations and enough staff to relieve the manager of day to day work (8 CFR 214.2(l)(14)(ii)). The I-129 fee is $1,385 ($695 for 25 or fewer FTE). The L-1A is also the usual bridge to an EB-1C green card; see our EB-1C guide.

I-9 and E-Verify: every hire, not only visa hires

Every new employee completes Section 1 of Form I-9 by the first day of work, and the employer completes Section 2 within three business days (8 CFR 274a.2(b)(1)). Forms are kept for three years after hire or one year after employment ends, whichever is later. E-Verify is voluntary under federal law for most private employers, but it is required for federal contractors with the FAR E-Verify clause (48 CFR 52.222-54), for employers of students on the STEM OPT extension, and under some state laws. The remote document examination alternative is available only to employers enrolled in E-Verify.

ICE reclassified many I-9 errors as substantive in March 2026; see our litigation brief, our guide to I-9 penalties and self audits, and our Notice of Inspection checklist.

Public access files and Project Firewall

Each H-1B employer must make a public access file available within one working day after filing the LCA, at its principal place of business or the place of employment (20 CFR 655.760). It includes the certified LCA, the wage rate paid, an explanation of the actual wage system, prevailing wage documentation, notice records and a summary of benefits. It is kept for one year beyond the last date any H-1B worker is employed under the LCA.

Under Project Firewall, announced September 19, 2025, the Department of Labor can open H-1B investigations on the Secretary's own certification of reasonable cause, without a complaint. The public access file is the first thing an investigator asks for. See our Project Firewall brief.

So, does a startup need outside counsel?

An honest answer by stage:

No sponsored workers yet: you need a correct I-9 process and, if you choose or must use it, E-Verify. A one time review of that setup is useful; ongoing counsel usually is not.
First H-1B, O-1 or L-1: yes. The petition, the wage level choice, the LCA and the public access file are legal commitments by the company, and since August 5, 2026 USCIS may deny without first asking for more evidence (our analysis).
Several sponsored workers: counsel for each petition plus an annual audit of I-9s and public access files is the usual model.

Samper Law handles most employer petitions, including H-1B, L-1 and O-1, on a flat fee, with hourly work against a retainer reserved for ongoing counsel and litigation.

Key numbers

Item	Amount or status	Source
H-1B cap	65,000 plus 20,000 master's	INA 214(g)
H-1B registration fee	$215	8 CFR 106.2
Weighted selection	In effect since Feb. 27, 2026	90 FR 60864
$100,000 payment	Extended to Sept. 21, 2027; implementing actions vacated, appeal pending	91 FR 60497; D. Mass. No. 1:25-cv-13829
$103,265 fee	Proposed; comments closed Sept. 24, 2026	91 FR 54817
I-129: H-1B / O / L	$780 / $1,055 / $1,385 (reduced $460 / $530 / $695)	8 CFR 106.2
Premium processing (I-129)	$2,965	91 FR 1059

What to do

Audit your I-9 process now, before the first visa hire.
Decide E-Verify deliberately: required, useful for STEM OPT hires, or not needed.
Screen each foreign hire for O-1, L-1, TN, E-3 or H-1B1 before defaulting to the lottery.
Set H-1B wage levels with the weighted lottery in mind, and budget for the $100,000 and $103,265 scenarios.
Build the public access file the day each LCA is filed, with one named custodian.
Calendar expirations and the new office L-1 one year deadline.
Engage counsel per petition, and schedule an annual compliance review.

Sources

Accurate as of September 25, 2026.