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: What are the requirements for working on the basis of filing, rather than approval of the H petition?

A:  Several factors can affect the candidate's start date:

1. Document Submission: How quickly the employer and candidate provide the required documents and return signed forms to WSM.

2. Labor Condition Application (LCA) Processing: The Department of Labor (DOL) typically approves the LCA, which is required for all H-1B petitions, within 7-10 calendar days (typically closer to 7).

3. Start Based on Petition Filing or Approval: The candidate and employer can choose whether to start employment upon USCIS receipt of the H-1B petition or wait for approval. Premium processing, available for an additional fee, compels USCIS to issue a decision (approval or Request for Evidence) within 15 business days. While a candidate is permitted to work while an RFE is pending, she and/or the employer may preferred to wait until the RFE is resolved before onboarding.

4. Candidate's Notice to Current Employer: Assuming she is still employed, the candidate needs to decide when to give notice to her current employer and how long she plans to stay (e.g., 2 weeks). If a candidate has already left her previous job or already knows the termination date with her current employer, she may be under additional time pressure to have a new H-1B petition filed and to start working as soon as possible in order to maintain her H-1B status. For more on the 60-day grace period see: https://www.wsmimmigration.com/immigration-resources/faqs/layoffs-or-reductions-in-force/

By law, H-1B employees can start working for a new employer upon filing the petition with USCIS. This can be established via FedEx/UPS confirmation of delivery or, more conservatively, the actual USCIS receipt.

Under the best circumstances, and assuming the candidate wants to begin work based on petition receipt as opposed to approval, the earliest that a candidate might begin work is 2 weeks from case initiation with the FedEx or UPS confirmation of delivery. A more reliable timeframe is about 4 weeks from initiation especially if the candidate prefers to provide 2 weeks’ notice to her current employer after the filing of the H-1B petition. If the candidate wishes to wait for approval before giving notice, it may take 8 weeks or more to onboard. 

Q:  When should the candidate give notice to her current employer?

A:  We recommend that notice not be given until we have at least 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, if not approved, 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. See also https://www.wsmimmigration.com/immigration-resources/faqs/faqs-on-h-1b-transfers-beginning-on-receipt/

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? 

(updated 09/2024)