H-1B Transfers: Beginning On Receipt
These materials are provided solely for informational purposes and are not legal advice. Transmission of these materials is not intended to create, and receipt does not constitute, an attorney-client relationship. Readers should not act upon the information contained in these FAQs without first seeking advice from a qualified attorney.
Q: May an H-1B holder begin work based on the receipt of a petition by the USCIS, as opposed to waiting for an actual approval?
A: Yes. Where a foreign national holds H-1B status and wishes to transfer employers, and assuming certain requirements are met, that foreign national may begin work for a new H-1B employer before receiving approval of the new H-1B petition.
Q: What requirements must an H-1B holder meet in order to begin work with a new employer based on the receipt of a transfer/extension petition by the USCIS?
A: The three basic requirements are: 1) the individual has not been employed without authorization (this could mean even one day of unauthorized employment); 2) the individual has been issued H-1B status previously; and 3) the individual has been lawfully admitted to the United States.
Q: What is meant by “receipt” of the petition by the USCIS? Must a USCIS receipt notice be issued in order for the petition to be considered “received” by the USCIS?
A: The USCIS has confirmed that a FedEx or UPS confirmation is sufficient to confirm “receipt.” It is not necessary to wait for the USCIS receipt notice to be issued.
Q: If the candidate prefers to wait for the USCIS receipt notice to begin working with a new employer, how long will that take?
A: Typically, the USCIS issues receipt notices in about 1 to 2 weeks.
Q: What are the consequences if the USCIS denies the case after the foreign national has started work for the new employer based on receipt of the petition by the USCIS?
A: In the unforeseen event that the government denies the H-1B petition, work authorization for the individual immediately ceases as of the date of the USCIS denial decision. The individual may then be required to leave the country to avoid being considered unlawfully present in the United States and to avoid jeopardizing a future ability to immigrate.
Q: How likely is it that the H-1B transfer will be denied?
A: If WSM can review the candidate’s documents showing full immigration history and prior employment, we can confirm continuous maintenance of lawful status and no unauthorized employment. In addition, provided the candidate holds the required bachelor’s degree in a specialty field and the H-1B job is for a specialty occupation, the chance of a USCIS denial is minimal.
Q: Can the H petition be filed with a request for premium processing?
A: As of 8/28/2018, the USCIS has suspended premium processing for most types of H-1B petitions (including requests for change of employer) until February 19, 2019.
Q: How long will it take the USCIS to approve the H-1B transfer/extension?
A: USCIS processing times vary widely but can take several months. For current processing times, check the USCIS website.