For an alien to obtain an H-1B visa, an employer must make a job offer and be willing to sponsor the alien by filing a petition with the USCIS. Generally, individuals cannot apply for an H-1B visa to allow them to work in the US. The U.S. employer must petition for the entry of the employee.

An employer seeking the services of an H-1B alien and filing the necessary papers to obtain such services must be a "U.S. employer." A U.S. employer is a person, firm, corporation, contractor or other association or organization in the United States with an IRS tax identification number known as a Federal Employer Identification Number (FEIN). There must be an employer-employee relationship, as indicated by the fact that the employer may hire, fire, pay, supervise or otherwise control the work of the employee.

There are two major requirements that the employer must fulfill:
a. The employer must have the ability to pay the employee. For instance, John wants to hire a computer programmer for his start-up company. He promises to pay an alien worker $50,000 for a year of work; however he currently has only $800 in his company’s bank account. Under this circumstance, John fails the ability to pay test;
b. The job offer to the intended H-1B beneficiary should be a bona fide offer. In other words, there must be a real business need for the position to be filled by the alien worker.
c. the employer must attest to the following six conditions:

1. The employer will pay the H-1B employee the higher of:
a. The actual wage rate that it pays to all other individuals with similar experience and qualifications, or
b. The prevailing wage level for the occupation in the “area of intended employment”, which is defined as the Metropolitan Statistical Area (MSA) and the narrower Primary Metropolitan Statistical Area (PSMA).
2. Employment of the H-1B worker will not adversely affect the working conditions of workers similarly employed in the intended area of employment;
3. There is no current strike/lockout involving the prospective H-1B worker’s position at his/her workplace;
4. The employer will provide notice of filing of the labor condition application to the employees’ collective bargaining representative for the H-1B occupation or, lacking such a representative, will conspicuously post such notice at the work site onthe date the labor condition application is filed,or within 30 days before it is filed, and shall remain posted for 10 days;
5. The employer will maintain for public examination:
a. A copy of the Labor Condition Application filed,
b. Documentation of the salary paid to the H-1B employee,
c. An explanation of how the actual wage was determined, and
d. Documentation of the basis used for the prevailing wage;
6. The employer must agree to pay the alien the reasonable cost of transportation to return to his or her home country if the employer terminates the alien’s employment prior to the end of the authorized employment period.