H-1B Transfers: Factors Affecting Start Date (for Employers)
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: We have made an offer to a candidate who requires an H-1B transfer. When can she start?
A: There are several factors which might affect the start date.
- How quickly the employer and candidate can provide initial required documents and information to WSM, and return forms requiring signature.
- Current Department of Labor (DOL) processing time for the Labor Condition Application (LCA), a requirement for all H-1B petitions. Typically, the DOL will approve the LCA within 5 to 10 days.
- Whether the candidate and employer wish to start employment based on USCIS receipt of the H-1B petition or wait for approval. As of August 28, 2018 the USCIS has temporarily suspended until February 19, 2019 all requests for H-1B premium processing (which provides for a decision within 15 calendar days for an additional $1,225 fee paid to the government). Approvals are currently taking more than 6 months.
- At what point the candidate feels comfortable giving “notice” to her current employer and how long after that she intends to work at her current employer (for example, provide 2 weeks’ notice).
The law allows H-1B transferring employees to start to work for a new employer upon filing the H petition with the USCIS. This “filing” may be established with FedEx or UPS confirmation of delivery of the petition or, more conservatively, with the actual USCIS hard-copy receipt.
Under the best circumstances, the earliest that a candidate might begin work is 2 weeks with the FedEx or UPS confirmation of delivery when she is immediately available. A more reliable timeframe is about 4 weeks from initiation, taking into account the candidate providing 2 weeks’ notice to her current employer after the filing of the H-1B petition.
Q. Should the candidate give notice when she accepts our offer?
A. We recommend that notice not be given until we have received the completed questionnaires and supporting documents and have had time to review the immigration history and possible issues involved in the H transfer. This generally would occur within 1-3 days of receiving the requested documents and information from both the employer and the candidate.
Many candidates prefer to wait until the H-1B transfer has been filed (about 2 weeks after initiation) to give notice.
Q. What are the requirements for working on the basis of filing, rather than approval of the H petition?
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.
WSM will be able to confirm that the candidate meets these requirements after we have reviewed the candidate’s previous immigration documents.
Q: What are the consequences if the USCIS denies the case after the candidate has started work for us 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. As long as the employer terminates employment immediately upon the H-1B petition denial, there is no liability to the employer.
Q. What are the chances that our H-1B transfer request will be denied?
A: WSM will conduct a full analysis to confirm the likelihood of success before filing the LCA or H-1B petition. If you would like a preliminary opinion, the recruiter or HR may contact WSM before the offer is made, and we can evaluate 1) is the position a clear-cut specialty occupation for H purposes, or instead one in which the USCIS routinely issues Requests for Evidence (e.g. market research analyst, mid-level general manager, sales position); 2) does the candidate have a clearly related bachelor’s degree or higher and is it from a U.S. or foreign university; 3) is the wage offered likely to comport with prevailing wage requirements for the occupation and geographic location?; and 4) does the candidate have a complicated U.S. immigration history with potential status violation issues?
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