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11 mins read | Jun 23, 2026
If you're weighing an employer of record visa sponsorship setup to bring on a foreign national, you'll eventually hit one question that decides everything: can the EoR actually be the petitioner for an H-1B or a green card? The short answer is that it usually can't, and the reason comes down to who controls the work. This guide walks through the rule behind that answer, separates an EoR from a PEO, and lays out when an EoR fits cleanly and when you need direct sponsorship instead. The decision stays with you.
What is an employer of record, and what does it actually do?
An employer of record (EoR) is a third party that becomes the legal employer of record for a worker on a client company's behalf. The EoR typically handles payroll, taxes, benefits, and local employment compliance, while your company directs the day-to-day work, sets priorities, and manages performance.
That split matters. EoR companies exist so you can hire someone in a country or state where you don't have a legal entity. The EoR carries the employment paperwork and compliance burden in that jurisdiction, and you get a working team member without standing up a new subsidiary. For global hiring of people who already have the right to work where they live, the model does exactly what it's built to do.
The catch shows up when work authorization in the United States is part of the picture. Sponsoring an H-1B or a green card isn't a payroll task. It's a petition that hinges on the relationship between the worker and the employer, and that's where the EoR structure runs into a wall.
How much does an employer of record cost?
EoR pricing varies by provider, country, and how many workers you place, so treat any single number with caution. Most EoR companies charge either a flat monthly fee per worker or a percentage of payroll, on top of the worker's salary and statutory costs. Ask each provider for a written quote tied to your specific headcount and locations rather than relying on a published list price.
Immigration costs sit in a separate bucket entirely. Government filing fees, attorney fees, and labor certification expenses for an H-1B or green card don't come from your EoR agreement. You can see how Tukki structures immigration support and pricing on our pricing page.
Can an employer of record sponsor an H-1B?
Generally, no. To sponsor an H-1B, the petitioner has to be a U.S. employer with a bona fide employer-employee relationship with the worker, and it has to be the actual employer with the right to control the work. Right to control means the practical authority to hire, pay, supervise, assign tasks, and fire.
An EoR is usually not the entity directing and controlling the work. Your company is. So even though the EoR is the legal employer of record for payroll and compliance, it normally fails the petitioner test that USCIS applies to H-1B cases. The entity that controls the work is the one that's expected to file.
Here's what an H-1B petition actually requires, and why the control question keeps surfacing:
- A U.S. employer acting as the petitioner.
- A specialty occupation role, meaning a position that normally requires at least a bachelor's degree in a specific field.
- A certified Labor Condition Application (LCA) from the Department of Labor.
- Form I-129 filed with USCIS.
The LCA and Form I-129 both ask the employer to attest to the working relationship. If the EoR signs as petitioner while your company directs the work, the petition describes a relationship that doesn't match reality. That mismatch is the core problem, not a paperwork technicality. You can read more about how sponsorship works in our explainer on what a visa sponsorship is.
What about an employer-sponsored green card?
The same control test applies, with a few extra steps. The employer-sponsored green card route for most professionals (EB-2 and EB-3) generally runs through PERM labor certification with the Department of Labor first, then Form I-140 filed with USCIS.
PERM requires a real, permanent job offer from the employer and a recruitment process showing no qualified U.S. workers are available for that specific role. The petitioning employer has to be the one offering the job and controlling it. An EoR that's only handling payroll and benefits doesn't hold that relationship, so it generally can't carry a PERM-based green card petition either. The company directing the work is normally the petitioner.
If your worker is already on an H-1B with you and you're thinking about a longer-term path, our guide on moving from H-1B to green card covers how the timing usually lines up.
Not sure which visa fits your hire?Answer a few questions and get matched to work visa options based on the role and the candidate.
Employer of record vs PEO: why the difference changes sponsorship
An EoR and a PEO sound similar and get confused constantly, but they sit on opposite sides of the control question, which is exactly what immigration cares about.
A PEO (Professional Employer Organization) operates under co-employment. Your company stays the common-law employer with the right to control the work, and the PEO administers HR, payroll, and benefits alongside you. An EoR, by contrast, acts as the sole legal employer. That single difference is why a PEO arrangement can coexist with your company being the petitioner, while an EoR structure usually can't.
The table below introduces the practical contrast for sponsorship purposes:
| Factor | Employer of record (EoR) | PEO (co-employment) |
|---|---|---|
| Who is the legal employer | The EoR, as sole legal employer | Your company, as common-law employer |
| Who controls the work | Your company | Your company |
| Relationship model | Sole legal employment | Co-employment |
| Typical use | Hiring where you have no legal entity | Outsourcing HR and payroll admin |
| Fit as H-1B or green card petitioner | Usually fails the control test | Your company remains the petitioner |
A PEO doesn't become the petitioner. Your company does, because your company keeps the common-law employment relationship. The PEO just runs the back office. With an EoR, the legal employer and the controlling employer are two different entities, and that gap is what breaks the petition.
When an employer of record is the right call
An EoR fits well when no U.S. work visa sponsorship is needed at all. Some common situations:
- You're hiring someone who already has work authorization in their home country and will work from there.
- You want to employ a U.S. citizen or permanent resident in a state where you have no entity.
- You're testing a new market and don't want to incorporate yet.
- The worker already holds independent U.S. work authorization that doesn't depend on you petitioning, such as a green card or certain other statuses.
In all of these, the worker can legally do the job without you acting as an immigration petitioner. The EoR handles employment compliance, you direct the work, and the immigration question never comes up. That's the lane the model is built for.
When direct sponsorship is required instead
You need direct sponsorship by the controlling employer when the worker's right to work in the U.S. depends on a petition. If a foreign national needs an H-1B to take a specialty occupation role at your company, or needs an employer-sponsored green card to stay long term, the entity controlling the work is normally the one that has to petition. An EoR sitting between you and the worker doesn't satisfy the employer-employee relationship that USCIS expects.
This decision table maps the common cases:
| Your situation | EoR works | Direct sponsorship needed |
|---|---|---|
| Worker employed abroad with local work rights | Yes | No |
| Worker already has independent U.S. work authorization | Yes | No |
| Worker needs an H-1B to work for you in the U.S. | No | Yes, by the controlling employer |
| Worker needs an employer-sponsored green card (PERM/EB-2/EB-3) | No | Yes, by the controlling employer |
If you land in the bottom two rows, the practical move is for your company to act as the petitioner directly, or to set up a U.S. entity that can. Founders weighing this while on a visa themselves may find our guide on starting a company on an H-1B useful, and anyone comparing routes can scan our overview of U.S. work visa types.
What this means for the worker
If you're the beneficiary, the takeaway is about who your petitioner really is. When an EoR is your legal employer of record, that entity is handling your payroll and benefits, but it's generally not the one that can file an H-1B or a green card for you. The petitioner has to be the employer that controls your work.
So if a recruiter or platform tells you an EoR will "sponsor" your visa, ask a direct question: which legal entity will sign the LCA and Form I-129, and does that same entity control your day-to-day work? If those two don't match, the petition has a problem before it's filed. You want the company directing your work to be the company on the petition.
How Tukki fits in
Tukki is a U.S. immigration provider that helps skilled professionals and the employers who hire them with work visas and green cards, from H-1B to EB-2 and EB-3. Whether your company is acting as the petitioner directly or you're a foreign national trying to confirm who your real sponsor is, you get dedicated attorney support and full visibility into the case at every step. You can compare options on our visa comparison page or check requirements in the H-1B guide and PERM guide.