5 Questions to Ask Before Rejecting a Visa Candidate

When a job candidate says they’ll need sponsorship, many HR teams think of just one thing: an H-1B visa.

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And these days, the H-1B probably seems like a headache. It means a wage-weighted selection process you might not win, rules that keep changing, and a $100,000 payment for certain petitions that a court has blocked for now, even though the Trump administration extended it through September 2027.

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DHS has also proposed a separate $103,265 fee for every new cap-subject H-1B petition, including for workers already in the U.S. It is not in effect and could change or be challenged in court. None of the options below would be subject to it as proposed.

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It might be tempting to move that résumé to the bottom of the pile, even if the candidate seems perfect.

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But the H-1B is only one path, and you may even have better options. Before you pass on a candidate who needs sponsorship, ask these five questions.

1. Does this candidate already have an H-1B?

If the candidate was counted against the H-1B cap in the past six years, a new employer's petition is generally cap-exempt. That means no lottery. If they're in the U.S. in valid H-1B status, they can usually start work once the new employer files, without waiting for approval.

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They may also be able to start sooner than you think. Under H-1B portability rules, a worker changing employers can generally start work once the new employer properly files the petition. They don’t have to wait for approval.

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What about the $100,000 payment? The fee applies to certain new H-1B petitions filed for workers who will get their visa abroad, not to most workers already in the U.S. A federal court struck down the policy behind the fee in June, and an appeals court let that ruling take effect in July. A Sept. 18 proclamation extends the fee through September 2027, but the court order should continue to block USCIS from collecting it while litigation continues.

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More litigation is likely, and a Sept. 18 presidential proclamation extends the fee to September 2027. Still, the court order should still bar U.S. Citizenship and Immigration Services from collecting the fee.

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So before you screen someone out, don’t assume they need a brand-new H-1B.

2. Could a TN, E-3, H-1B1, or E visa work instead?

Several work visas are tied to a person’s citizenship and they don’t go through the H-1B selection process.

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Citizenship

Visa

What it covers

Canada or Mexico

TN

Jobs on a set list of professions. Most require a bachelor's degree.

Australia

E-3

The same kinds of jobs as H-1B, such as science, health care, or business roles that require at least a bachelor’s degree in a related field. There are 10,500 visas a year.

Chile or Singapore

H-1B1

Also the same kinds of jobs as H-1B. There are 1,400 visas a year for Chile and 5,400 for Singapore.

A treaty country

E-1 or E-2

Managers, executives and essential staff at a U.S. company at least 50% owned by people from that country.

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None of these visas is an automatic yes. The job and the person still have to qualify and each visa requires its own paperwork.

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But H-1B isn’t the only option for a candidate, and it may not even be the best one.

3. Could the candidate qualify for an O-1A?

The O-1A is for people with extraordinary ability, and it has no annual cap and no lottery. A related visa, the O-1B, covers people in the arts, film and TV. We'll focus on the O-1A, since it fits most professional hires. 

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“Extraordinary ability” might seem like a high bar to clear, but USCIS provides requirements to help applicants make their case. A petition generally needs evidence that meets at least three of eight criteria. The ones that fit professional hires most often include:

• Judging others’ work, like peer reviews for journals or judging industry hackathons and pitch competitions.
• Scholarly writing, like research papers or reports.
• Original contributions of major significance, like a patent or product that others in the field have adopted.
• High pay compared with others in the same job and area (a common rule of thumb is in the top 10%.) Equity and bonuses may count too.
• A critical role at an organization with a distinguished reputation.

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In my experience, HR teams tend to rule out candidates for the O-1A for three common reasons:

1. They don't have an academic background. However, the O-1A isn't just for Ph.D. scientists. Industry work can count.
2. They haven't won major awards or gotten press. However, awards and press are only two of the eight criteria. And if a criterion doesn't readily apply to the candidate's field, USCIS may accept “comparable evidence.”
3. They're early in their careers. However, years of experience isn't one of the criteria. Even a junior candidate may be able to meet the requirements.

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Note: Meeting three criteria isn’t enough on its own. USCIS will weigh a candidate’s full record.

4. Does the role need to be in the U.S. on day one?

Some companies hire the person to work remotely from their home country first. Hiring abroad has its own tax and employment rules, but it can buy time.

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For companies with an office abroad, it can also open another path to the U.S. The L-1 visa lets a company transfer an employee from a related foreign office. The employee generally needs one continuous year with that office within the past three years.

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The companies must be related, like a parent and subsidiary, and both must be actively doing business. The employee also needs to be a manager or executive, or have specialized knowledge of the company.

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That makes the L-1 especially useful for foreign companies expanding into the U.S.

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Before you pass on a candidate, ask where the work really needs to happen.

5. How urgent is this hire really?

If your team needs to hit a revenue number in three months to raise its next round, you can’t afford to wait six months to hire a software engineer from Estonia.

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But not every hire is that urgent. If you want someone to stay for years, Manifest’s Chief People Officer Harry Uffindell puts it this way: “You’re always going to be better off finding the best person on the planet.”

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The legal side determines how long it takes. For a new cap-subject H-1B, registration happens each March. If you missed this year's, the earliest realistic start date is Oct. 1, 2027.Other visas don’t have as strict a calendar, but timelines are always changing.

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Either way, have a backup. If a selection or petition doesn’t go your way, you don’t have to let the perfect candidate get away.

How to build sponsorship into your hiring plan

Requiring sponsorship doesn’t have to end the conversation if you build the visa timeline into your plan when you open the role.

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Harry and I are digging into this in a two-part webinar series, so bring your questions:

1. On Oct. 7, we’ll cover how to build a hiring system that moves fast without lowering the bar for quality. 👉 Save your spot for session one
2. On Oct. 14, we’ll talk about building your first U.S. team. 👉 Save your spot for session two

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