US
US Work Visa: Employer Guide in 2026
US Work Visa Employer Guide 2026: H-1B Changes, FICA Obligations, and What Every Global Employer Must Know. Learn More Free Hiring Guide!
| Key Takeaways | |
|---|---|
| The $100,000 H-1B fee | A Presidential Proclamation effective September 21, 2025 requires a $100,000 supplemental fee per H-1B petition for workers outside the US. Extensions and transfers for existing H-1B holders are exempt — but new petitions for overseas candidates are not. USCIS ↗ |
| Who is most exposed | Indian and Chinese nationals hold over 72% of all H-1B visas issued. When a valued employee in either of these groups cannot be brought to the US — due to lottery failure, the $100K fee, or consular processing risk — the employer faces an immediate retention problem. USCIS H-1B Data ↗ |
| EOR abroad — the retention solution | An Employer of Record (EOR) allows a US company to legally employ a valued foreign national in their home country — on a full-time employment contract with local payroll, statutory benefits, and IP protections — while the immigration situation resolves, or permanently. No entity setup required. Slasify EOR ↗ |
| What EOR abroad does NOT solve | EOR abroad keeps the person employed and contributing. It does not accelerate a visa, replace an H-1B approval, or allow the employee to work physically in the United States. For roles that require US on-site presence, EOR abroad is a bridge — not the permanent answer. |
| The 30-day decision window | When a lottery result fails, a fee is prohibitive, or consular hold begins, employers typically have 30–60 days before the employment relationship becomes legally unclear. Acting within that window — to either transition to EOR abroad or explore alternative visa pathways — is what separates retention from attrition. |
| Slasify operates in 100+ countries and has managed EOR transitions for H-1B-affected employees across India, China, Singapore, Canada, Vietnam, and beyond. Talk to our team about your specific situation → | |
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In this guide
- The retention problem the $100K fee created
- Who is most affected — and why it matters for your team
- What EOR abroad actually means in practice
- Three common scenarios and what to do in each
- EOR abroad vs. other options: a clear-eyed comparison
- How to transition an employee to EOR abroad — step by step
- What EOR abroad cannot do — and when to have that conversation
- The 30/60/90-day employer action plan
- FAQs
Your H-1B candidate did not clear the lottery. Or they did — but the $100,000 supplemental fee is not in this year's budget. Or your employee is stuck outside the United States after a consular appointment went wrong, and you do not know how long they will be abroad. Any of these situations creates the same urgent question: how do we keep this person employed and contributing while the immigration system figures itself out?
This is not a hypothetical. Since the Presidential Proclamation took effect in September 2025, US employers have been navigating a materially different H-1B environment — one that requires an operational response, not just an immigration strategy. Employer of Record abroad has emerged as the most practical bridge for companies that want to retain valued foreign nationals without losing them to competitors, to career uncertainty, or simply to the difficulty of the situation.
This guide covers who is most exposed, how EOR abroad works in practice, what it can and cannot do, and the specific steps to take in the first 30 to 60 days when an H-1B plan falls through.
1. The Retention Problem the $100K Fee Created
Before September 2025, the H-1B system was expensive and unpredictable — but the costs were manageable for most employers. A standard petition ran $5,000–$15,000 in fees and legal costs. The lottery was a genuine gamble, but the downside was limited to a failed registration, not a six-figure invoice.
The Presidential Proclamation changed that calculus entirely. A $100,000 supplemental fee per petition applies to any H-1B petition for a worker currently located outside the United States.1 It does not apply to extensions, amendments, or transfers for employees already in the US — but for a company trying to bring in new overseas talent, or to sponsor a lottery winner who has not yet entered the country, it is a material barrier.
The fee changed the calculation, but the lottery still creates the underlying problem. Even with an unlimited budget, a lottery failure means the person cannot legally work in the United States for that cap year. The fee and the lottery are separate problems that often compound each other: a company that could absorb the $100K fee still loses access to the employee if they do not clear the lottery. Most affected employers are dealing with both constraints at once.
JPMorgan estimated the fee could block approximately 5,500 work authorisations per month. That is not an abstract policy effect — it is real people, already in hiring pipelines or on their way, whose employment status in the US is suddenly unclear. For each one of those individuals, there is an employer trying to figure out what to do next.
2. Who Is Most Affected — and Why It Matters for Your Team
The nationality picture
Indian and Chinese nationals receive over 72% of all H-1B visas issued in the United States.2 That concentration means the operational impact of H-1B disruption is not spread evenly across a company's international workforce — it falls disproportionately on employees from these two countries. Both India and China have large, well-established professional populations in the US on H-1B status, and both have long green card backlogs that make alternative paths slow and uncertain.
| Affected group | Why H-1B disruption hits hardest | EOR destination options |
|---|---|---|
| Indian nationals | Largest H-1B recipient group; green card backlogs of 50–100+ years for EB-2/EB-3 make alternative immigration paths extremely slow | India (Bengaluru, Hyderabad, Pune, Mumbai, Delhi) — large EOR market with established payroll infrastructure |
| Chinese nationals | Second-largest H-1B group; EB-2/EB-3 China backlog also multi-decade; TN visa not available; E-3 visa not available | China, Singapore, Hong Kong — well-served by EOR providers with regional entities |
| Mexican / Canadian nationals | TN visa is a strong alternative, but TN is occupation-limited and not available for all roles | Mexico, Canada — near-shore and on similar time zones to US teams |
| European nationals (UK, German, etc.) | E-3 (Australia only), no direct equivalent; H-1B lottery still required | UK, Germany, Netherlands, Ireland, Poland — mature EOR markets with strong employment law frameworks |
What this means for retention risk
A valued engineer or analyst from India or China whose H-1B lottery fails this year faces a very specific set of options: return to their home country, find a US employer who will absorb the $100K fee, pivot to a role at a non-US company, or stay on a non-work visa status until the next lottery cycle. None of those options serve the employer. EOR abroad adds a fourth path: stay employed by the same US company, contribute meaningfully, and maintain the employment relationship while the immigration picture develops.
3. What EOR Abroad Actually Means in Practice
An Employer of Record (EOR) is a third-party provider that becomes the legal employer of your team member in their home country — handling local employment contracts, payroll, statutory benefits, and compliance — while the employee continues to work for your business on a day-to-day basis.
In the H-1B context, EOR abroad means your affected employee does not have to leave the company. They transition from being a US-based employee (or a pending US hire) to being an employee of record in their home country — India, China, Canada, or wherever they are based. The employment relationship with your business continues. The deliverables continue. The salary continues, typically converted to local currency and adjusted for local cost-of-living benchmarks. What changes is the legal entity employing them and the compliance framework governing that employment.
| What changes with EOR abroad | What stays the same |
|---|---|
| Legal employer — now the EOR entity in the home country | Day-to-day work, deliverables, team membership |
| Employment contract — now governed by local law | Reporting line and manager relationship |
| Payroll currency and statutory deductions — now local | Compensation level (adjusted for local equivalence) |
| Statutory benefits — now per home country requirements | Access to company tools, systems, and communications |
| Work location — now their home country | IP assignment and confidentiality obligations |
| Immigration status in the US — no longer required | Strategic value to the business |
EOR abroad is not the same as contractor reclassification. A common instinct when an H-1B plan fails is to shift the person to a freelance or contractor arrangement to keep them contributing. This approach carries significant misclassification risk, provides no employment protections for the worker, and is often unstable over time. EOR abroad provides a proper employment relationship — with a contract, benefits, and legal standing — which is both more compliant and more likely to retain the person over the long term.
4. Three Common Scenarios and What to Do in Each
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Scenario 1
The lottery failed — employee is still in their home country
Your candidate was registered for the H-1B cap, did not clear the lottery, and is currently outside the US. They have a job offer from you, a strong role, and no way to enter the US for that cap year without a non-cap visa alternative.
Recommended path: Evaluate non-cap alternatives first (TN for Canadians and Mexicans, E-3 for Australians, O-1 for candidates with extraordinary ability credentials). If none apply, transition the offer to an EOR arrangement in their home country. Onboarding via EOR can begin within days — the candidate starts contributing while you plan the next lottery registration cycle or assess whether US-based placement is still the right long-term structure.
Key EOR markets for this scenario: India, China, Canada, Germany, Philippines, Vietnam — all countries with established EOR infrastructure and fast onboarding timelines.
Scenario 2
The $100K fee makes a new petition economically unworkable
Your candidate cleared the lottery — a genuine success — but the $100,000 supplemental fee was not budgeted and the business case for absorbing it does not hold up for this particular role or seniority level. You want to retain them; you cannot justify the fee.
Recommended path: This is the clearest EOR-abroad use case. The employee's US work authorisation path is blocked by cost, not by policy. Transition to EOR in their home country now, maintain the relationship and the role, and revisit the H-1B question in the next budget cycle or when the person's seniority level makes the fee easier to justify. In the interim, the employee is contributing, compensated, and retained.
Cost comparison: EOR costs typically run 10–15% of salary in most markets — versus a $100,000 fixed fee plus $10,000–$15,000 in legal and admin costs for an H-1B petition. For roles under $200,000 annual salary, EOR abroad for 1–2 years is almost always the more cost-effective path while the fee situation develops.
Scenario 3
Employee is stuck abroad — consular hold or travel restriction
Your employee holds a valid H-1B status but is currently outside the United States — after a home visit, a consular appointment, or administrative processing — and re-entry has been delayed or blocked. They are still employed by your US entity on paper, but they cannot legally perform US-based work from abroad.
Recommended path: This is a bridge scenario. Transition the employee to EOR in their home country immediately to maintain the employment relationship legally while the re-entry situation resolves. This protects both parties — the employee has a valid employment contract and income, and the company maintains the working relationship without creating a compliance exposure from an employee working in a foreign country without a proper employment structure. When US re-entry becomes possible, transition back.
Timeline sensitivity: This scenario has the tightest clock. Employment in a foreign country without local compliance creates risk within weeks. Act early — do not wait for the consular situation to resolve before putting the EOR structure in place.
Facing an H-1B problem with a valued employee right now?
Slasify has managed EOR transitions for H-1B-affected employees across India, China, Singapore, Canada, the Philippines, Vietnam, and 100+ other markets. Our team can assess your situation and outline the right path within 24 hours.
5. EOR Abroad vs. Other Options: A Clear-Eyed Comparison
When an H-1B plan fails, employers typically consider several responses. Not all of them protect the employment relationship. Here is how the main options compare.
| Option | Retains the employee? | Legal compliance? | Speed | Best suited for |
|---|---|---|---|---|
| EOR abroad (home country) | Yes — full employment | Yes — local employer of record | 3–14 days | All scenarios — especially when US presence is not immediately required |
| Try alternative US visa (TN / O-1 / L-1) | Yes — if approved | Yes | 2–8 weeks | Candidates who qualify — Canadian/Mexican (TN), extraordinary ability (O-1), intracompany (L-1) |
| Wait for next H-1B lottery | Partial — role may be unfilled | Only if employment is structured correctly in interim | 12 months | Very senior roles where the fee is justifiable and the person can wait |
| Convert to contractor / freelance | Partial — no employment protections | Risk — misclassification exposure | 1–2 weeks | Not recommended as a primary strategy — short-term bridge only with legal review |
| Let employment lapse — rehire later | No — attrition risk is high | N/A | N/A | Never the right answer for a valued employee if an alternative exists |
The cost of attrition is usually underestimated. Replacing a specialised engineer, analyst, or senior contributor typically costs 50–200% of their annual salary when recruitment, onboarding, productivity ramp-up, and knowledge transfer are fully accounted for. EOR abroad at 10–15% of salary per month — even for a full year while a visa situation develops — is materially cheaper than losing the person entirely and starting the hiring process over.
6. How to Transition an Employee to EOR Abroad — Step by Step
A well-managed EOR transition takes between one and three weeks, depending on the destination country. The key is starting the process before the current employment arrangement reaches its legal expiry — not after.
1
Confirm the destination country and compliance requirements. The employee's home country determines the employment law framework, statutory benefits, payroll setup, and any required work permits for the EOR arrangement. Some countries have straightforward EOR onboarding; others have registration lead times. Your EOR provider should confirm the timeline and requirements within 24–48 hours of your enquiry.
2
Agree on the compensation and benefits package for the home country role. The employee's salary needs to be considered in local context — converted to local currency, benchmarked against local market rates, and structured to include the statutory benefits required in that country (social security, health insurance, leave entitlements). This is typically a conversation between HR, the employee, and the EOR provider.
3
Issue the EOR employment contract. The EOR provider prepares a locally compliant employment contract for the employee to sign. This contract governs the employment relationship in the home country. Your IP assignment and confidentiality requirements can typically be incorporated via a separate services agreement between your company and the EOR.
4
Terminate or suspend the US employment arrangement. Depending on the situation — lottery failure, fee barrier, or consular hold — work with US employment counsel to correctly wind down the US employment structure. If the person held H-1B status, USCIS should be notified. If they were in the pipeline but never employed in the US, the offer letter needs to be restructured. This step requires legal review and should not be skipped.
5
Set up payroll in the home country. The EOR provider runs local payroll, deducts statutory contributions, and remits employer taxes. The employee receives a local payslip and is covered by local social security and health insurance schemes from their first payroll cycle. Your company receives a consolidated invoice from the EOR.
6
Communicate clearly with the employee. The most important step is often the least operational: a direct, human conversation with the affected person about what is happening, why, and what it means for their career within your organisation. People retain through uncertainty when they feel valued and supported — not when they receive a contract revision without context. Be specific about the long-term plan, even if that plan is still uncertain.
7. What EOR Abroad Cannot Do — and When to Have That Conversation
EOR abroad is a strong solution for a specific problem. It is worth being clear about its limits, because setting the right expectations with affected employees and internal stakeholders matters as much as the operational plan itself.
- —EOR abroad does not allow the employee to work in the United States. An employee employed via EOR in India is legally authorised to work in India. They are not authorised to travel to the US for extended work visits. Short business trips may be permissible under B-1 visa status, but these come with their own restrictions. EOR abroad is a remote work arrangement, not a US employment arrangement.
- —EOR abroad does not count as H-1B time or build toward green card eligibility. The time spent under EOR abroad does not advance the employee's position in the green card queue or generate any H-1B cap-exempt status. It keeps the employment relationship alive, but it does not advance any US immigration pathway.
- —EOR abroad does not guarantee a visa outcome later. Registering for the next H-1B lottery while the employee is on EOR abroad is still a lottery — with all the same uncertainty. The fee, if it applies, is still due if the petition proceeds.
- —EOR abroad requires the role to be genuinely remote-compatible. If the role requires regular physical presence in a US facility — a lab, a regulated environment, a client-facing location — EOR abroad may be a bridge for some weeks but is not a long-term solution. For roles that can genuinely be performed from anywhere, it is far more sustainable.
⚠ Have the honest conversation early. Employees who are retained on EOR abroad need clarity on what the long-term plan is — including an honest assessment of whether and when a US arrangement is likely. If the realistic answer is "probably not in the next two years," saying so early — and building a genuine career path for the person in their home country or as a permanent remote contributor — is far better for retention than months of ambiguity followed by a difficult conversation.
8. The 30/60/90-Day Employer Action Plan
When an H-1B plan falls through, the first three months are when most retention decisions are effectively made — even if the formal decisions come later. Here is a practical timeline for employers.
| Timeframe | Priority actions | Owner |
|---|---|---|
| Days 1–7 Immediate |
Inform the affected employee directly and empathetically — before they hear it from other sources. Assess whether any alternative US visa pathway applies: TN (CA/MX), E-3 (AU), O-1 (extraordinary ability), L-1 (intracompany). Engage immigration counsel immediately. If no US alternative applies, flag EOR abroad as the intended bridge — do not leave a status vacuum. |
HR lead + immigration counsel |
| Days 8–30 Decision |
Confirm destination country and initiate EOR onboarding if proceeding. Agree compensation and benefits package in local context with the employee. Work with US employment counsel to correctly close out or restructure the US employment arrangement. Issue EOR employment contract and begin first payroll cycle. |
HR + EOR provider + US employment counsel |
| Days 31–60 Stabilise |
Confirm first EOR payroll run is correct and the employee has received their payslip and local statutory enrolments. Integrate the employee's new time zone and local calendar into team workflows. Brief the employee's manager on how to manage the remote relationship effectively — including clear deliverables, regular check-ins, and inclusion in team communications. |
People ops + line manager |
| Days 61–90 Plan forward |
Review the long-term plan: is the next H-1B lottery registration the right path? Is permanent EOR abroad the right structure? Is a different US visa pathway now available? Conduct a one-on-one career conversation with the employee — be specific about the business's commitment to them and what the scenarios look like. Document the plan in writing so both the employee and the organisation have shared expectations. |
HR lead + employee + immigration counsel |
Don't lose a valued employee to an H-1B problem that has a solution.
Slasify's global EOR and payroll team has helped US companies retain H-1B-affected employees across India, China, Singapore, Canada, the Philippines, and 100+ other markets. We can assess your situation, outline the right EOR structure, and begin onboarding within days — so your employee stays employed and your team stays whole.
Sources
- 1USCIS — DHS changes process for awarding H-1B work visas — wage-weighted lottery and $100,000 fee (effective September 21, 2025)
- 2USCIS — Annual Report of the H-1B Visa Program — nationality distribution data
- 3Economic Times / USCIS — Indian nationals received over 72% of all H-1B visas issued (Oct 2022 – Sept 2023)
- 4Business Insider / JPMorgan — JPMorgan estimates H-1B fee could block ~5,500 work permits per month
- 5National Law Review — The White House's H-1B Proclamation: What Employers and Workers Need to Know
- 6Slasify — Employer of Record (EOR) solution
- 7Slasify Blog — H-1B Visa Upheaval in 2025: How It Impacts U.S. Businesses — and Why EOR Is the De-Risked Alternative
- 8Slasify Blog — H-1B Costs Up? Grow in Asia with EOR and Contractor Hubs