Navigating the Start Date for H-1B Transfer Employees

Determining the start date for H-1B employees employed by another company

An HR person talking with an H-1B employee.

As the business landscape continues to evolve, the demand for qualified employees is on the rise. According to a 2021 McKinsey study, 69% of organizations surveyed reported an increased focus on skills-building following the Covid-19 pandemic. In this competitive talent market, international employees, particularly those on an H-1B visa, represent a valuable pool of talent. Employers looking to attract top-tier, highly skilled professionals should consider sponsoring H-1B candidates.

However, sometimes the right candidate for the job is already on an H-1B visa and employed by another U.S. company. In this case, determining the employee’s start date isn’t always straightforward. Read on to learn what you should consider and best practices when deciding on the right start date for H-1B transfer employees.

When Can an H-1B Transfer Employee Start Work?

One of the most commonly asked questions in H-1B recruitment is when the transfer candidate can legally start work. Let’s delve into the various possibilities and considerations surrounding the start date.

It’s legally permissible for an H-1B candidate to begin work for the new employer once the transfer petition has been delivered by U.S. Citizenship and Immigration Services (USCIS).

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However, a more cautious approach is for the H-1B candidate to commence work after receiving approval from USCIS for the visa transfer. At the very least, they can consider starting once there is confirmation that USCIS has processed the filing fees accompanying the transfer application, which typically takes between 4-7 days to 1-2 weeks.

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

Start Date Option #1: Immediate Commencement

While not considered the best practice, it is legally permissible for an H-1B employee to begin work once there is confirmation from FedEx or UPS, along with a hard copy receipt, that the transfer petition has been delivered to USCIS. This approach comes with some caveats, including the time it takes to gather necessary documents, process the Labor Condition Application (LCA), and physically submit the application.

Start Date Option #2: Confirmation of Receipt

An H-1B employee talks to her boss

A less risky option is to base the start date on the receipt of the transfer petition rather than just its delivery. This provides both the employer and the candidate with added confidence that USCIS has acknowledged receipt. Nevertheless, factors such as the time required to complete forms, LCA processing, and the candidate’s notice period to 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 petition. While this offers the highest level of assurance, it can result in a waiting period of 4-6 weeks or longer. With premium processing, a decision is made within 15 calendar days, but it could 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 navigate the H-1B recruitment process effectively and ensure a smooth transition for H-1B employees, consider these best practices:

  • Negotiate Start Dates: Acknowledge 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 the Current Employer: While candidates often provide a standard 2 weeks’ notice, it’s 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 case of application denial.

In today’s competitive talent market, securing and retaining highly skilled H-1B employees is a smart move for organizations striving to stay ahead. Determining the right start date is a critical 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 navigate the H-1B recruitment process successfully, ensuring a seamless transition for their international employees and reinforcing their talent strategy.

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