Skip to main content

Does the H-1B worker have to be a W-2 employee?

By February 15, 2021June 11th, 2025H-1B and E-3 Visa, Uncategorized
Courtesy of PicServer, labeled for reuse: http://www.picserver.org/images/highway/phrases/employment.jpg

H-1B visa is a non-immigrant visa that permits a company to hire workers in specialty occupations.  This visa category requires that the beneficiary (the foreign worker) have a bachelor’s degree, and the petitioner (the U.S. company) can employ the worker for up to six years.

The question that sometimes arises is whether the H-1B worker can be paid as a 1099 independent contractor or whether the H-1B worker has to be a W-2 employee.

The H-1B worker should be employed as a W-2 employee. The H-1B regulations indicate that there must be an employer-employee relationship between the H-1B petitioner (the U.S. company) and the H-1B worker, and that the H-1B petitioner can hire, pay, fire, supervise, or otherwise control the work of the H-B worker. Additionally, the H-B regulations talk about obligations of the H-1B employer such as keeping payroll or withholding employee’s taxes.

Please also note that the H-1B employer has to keep certain documents (including the wage that is being paid to the H-1B employee) in the Public Access File.

Additionally, the H-1B employer is required to pay the higher of actual or prevailing wage. Please see our blog post on this topic when you click here.

Please click here to find out whether you can work for a U.S. company from abroad.

FREE IMMIGRATION RESOURCES

Guides icon

Guides
We have guides for most visas and green cards which you can download for free.

Download Guides
Webinar icon

Webinars
Sign up to one of our webinars that cover your visa or green card.

Sign Up Now
Videos icon

Videos
On our YouTube channel we hosts videos that cover most visas and green cards.

View Videos

DO YOU HAVE QUESTIONS?

If you’re navigating the complexities of immigration law, you don’t have to do it alone. Our experienced team is here to guide you through every step of the process with personalized solutions tailored to your unique situation. Whether you’re pursuing a visa, green card, or citizenship, we are committed to making your journey smoother. Schedule a consultation today to get the expert advice and support you deserve.

Schedule a Consultation
Schedule A Consultation FREE WEBINARS