Navigating the Start Date for H-1B Transferred Employees

A human resources person talking with an H-1B employee.

As the economic landscape continues to evolve, the demand for qualified employees increases. According to According to a 2021 McKinsey study, 69% of surveyed organizations reported an increased focus on skills development following the Covid-19 pandemic. In this competitive talent market, international employees, especially those with H-1B visa, represent a valuable pool of talent. Employers looking to attract high-profile, highly qualified professionals should consider sponsoring H-1B applicants.

However, sometimes the right candidate for the position is already an H-1B visa holder and employed by another U.S. company. In this case, determining the employee’s start date is not always simple. Read on to learn what you need to consider and best practices for deciding the right start date for H-1B transferred employees.

When can an H-1B transferred employee start working?

One of the most frequently asked questions during H-1B recruitment is when the transferring applicant can legally begin working. Let’s look at the different possibilities and considerations surrounding the start date.

It is legally permitted for an H-1B applicant to begin working for the new employer once the transfer petition has been delivered by the United States Citizenship and Immigration Services (USCIS).

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However, a more prudent approach is for the H-1B applicant to begin work after receiving USCIS approval for the visa transfer. At the very least, they can consider getting started once they confirm that USCIS has processed the filing fees accompanying the transfer request, which typically takes between 4-7 days and 1-2 weeks.

Here is a closer look at the different options available to employers when determining the start date of an H-1B transferred employee.

Start Date Option #1: Immediate Start

Although not considered best practice, it is legally permitted for an H-1B employee to begin work once they have received confirmation from FedEx or UPS, along with a paper receipt, that the transfer request has been transmitted to USCIS. This approach has some caveats, including the time required to gather the necessary documents, process the Working Conditions Application (LCA), and physically submit the application.

Start Date Option #2: Confirmation of Receipt

H-1B worker talks to her boss

A less risky option is to base the start date on receiving the transfer request rather than simply delivering it. This gives the employer and applicant additional certainty that USCIS has acknowledged receipt. However, factors such as the time required to complete the forms, the processing of the LCA and the candidate’s notice period with their current employer can still influence the start date.

Start Date Option #3: Pending USCIS Approval

The most conservative option is to wait until USCIS approves the transfer request. While this provides the highest level of assurance, it may result in a waiting period of 4-6 weeks or more. With premium processing, a decision is made within 15 calendar days, but it may involve a request for additional evidence (RFE). Without premium processing, the process can take several months. Therefore, basing an employee’s start date on USCIS approval is not feasible for the majority of employers.

Best practices to consider

To effectively navigate the H-1B recruitment process and ensure a smooth transition for H-1B employees, consider these best practices:

  • Negotiate start dates: Recognize that start dates are negotiable. Maintain open lines of communication to determine a mutually agreeable start date based on individual circumstances.
  • Timing of notice to current employer: Although applicants often provide a standard 2 weeks notice, it is recommended to wait until the petition has been filed with USCIS, or even until USCIS approval, before notifying the current employer. This precaution helps avoid complications in the event of a refusal of an application.

In today’s competitive talent market, recruiting and retaining highly qualified H-1B employees is a smart move for organizations striving to stay ahead of the curve. Determining the right start date is a crucial step in this process, as it has implications for both the employer and the candidate. By considering the legal requirements and best practices outlined in this article, employers can successfully navigate the H-1B recruiting process, ensuring a smooth transition for their international employees and strengthening their talent strategy.

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