As businesses continue to grow and adapt in today’s fast-changing market, the demand for skilled employees is at an all-time high. A 2021 study by McKinsey revealed that 69% of companies surveyed placed more emphasis on skills development following the Covid-19 pandemic. With the talent pool becoming more competitive, many employers are looking to international candidates—especially those on an H-1B visa—as a valuable source of skilled workers.
However, some of the best candidates for a job may already be employed by another U.S. company on an H-1B visa. If you’re hiring someone who is transferring from another employer, figuring out the right start date can be tricky. In this article, we’ll go over everything you need to know to determine the appropriate start date for an H-1B transfer employee and the factors to consider when making that decision.
When Can an H-1B Transfer Employee Start Work?
A common question employers ask is, “When can an H-1B transfer employee legally start working for us?” The timing is important because it can affect the legal status of both the employee and the employer. Here’s what you need to know:
It is legally possible for an H-1B employee to begin working with the new employer once USCIS has received the transfer petition. However, most experts recommend a more cautious approach, where the employee starts work only after receiving confirmation from USCIS that the transfer has been approved.
In some cases, the employee may also begin working once the USCIS has confirmed that the transfer application fees have been processed—this typically happens within 4 to 7 days, but can sometimes take up to 1-2 weeks.
Let’s break down the different timing options available when setting the start date for an H-1B transfer employee.
Start Date Option #1: Immediate Start (Not Recommended)
Technically, an employee can begin working as soon as the employer has received confirmation that the transfer petition has been delivered to USCIS. This confirmation usually comes in the form of a receipt from a delivery service like FedEx or UPS.
However, this method is not considered best practice. It involves risks because it doesn’t guarantee that USCIS has processed the application. Also, there are various steps that need to be completed before the transfer petition can even be filed, such as processing the Labor Condition Application (LCA) and gathering the necessary documents. Given these complexities, starting the employee right away could cause complications if any issues arise during the petition process.
Start Date Option #2: Start After Confirmation of Receipt
A safer option is to set the start date based on the receipt notice from USCIS. This notice confirms that USCIS has received and processed the transfer petition, which gives both the employer and the employee more assurance that the process is moving forward.
Still, there are a few factors to consider before making the final decision on the start date. The time needed to finalize forms, get the LCA approved, and handle the employee’s notice period with their current employer can all affect when the employee can actually begin work. This option provides more certainty than starting right after delivery, but it still requires careful timing.
Start Date Option #3: Wait for USCIS Approval (Most Conservative)
The most cautious option is to wait until USCIS officially approves the transfer petition before allowing the employee to start working. This guarantees that the employee is legally authorized to work for the new employer.
However, this option often leads to a waiting period of 4 to 6 weeks (or longer). If the employer chooses premium processing, the decision could be made within 15 calendar days, but it may still involve a request for additional evidence (RFE), which can further delay the process. Without premium processing, the approval process can take several months.
While this option provides the most security, it’s not always practical, especially for employers who need the employee to start work sooner.
Best Practices for Determining the Start Date
To successfully navigate the complexities of the H-1B transfer process, employers should consider these best practices when determining the employee’s start date:
1. Negotiate the Start Date with the Employee
Start dates should be flexible and negotiable. Communicate openly with the employee about their preferences and constraints. Try to find a mutually agreeable start date that works for both the employer and the candidate, taking into account their notice period with their current employer and any other personal circumstances.
2. Timing of Notice to the Current Employer
It’s important to think about when the candidate gives notice to their current employer. While many employees typically give two weeks’ notice, it’s a good idea for candidates to wait until the H-1B transfer petition has been filed, or even until USCIS approval, before notifying their current employer. This approach reduces the risk of complications if there are delays in the transfer petition or if the petition is denied.
3. Plan for Potential Delays
Given the potential for delays, it’s always wise to plan for extra time. Delays in the USCIS processing times, issues with the LCA, or requests for additional documentation can all extend the timeline. Employers should be prepared for these delays and keep the lines of communication open with the employee throughout the process.
4. Consider Premium Processing
If it’s important to expedite the process, consider opting for premium processing. Although it comes with an additional cost, it guarantees that USCIS will process the petition within 15 calendar days. This can help reduce uncertainty and get the employee to start work as quickly as possible.
Determining the right start date for an H-1B transfer employee is a critical step in the hiring process. While there are multiple options available to employers, each comes with its own set of risks and considerations. The best approach depends on the specific circumstances of the employee and the employer’s urgency.
To ensure a smooth transition for your H-1B employee, consider these key points:
- Make sure the transfer petition is properly filed before setting a start date.
- Use receipt notices as confirmation of petition submission rather than just delivery.
- For the most security, wait for USCIS approval, but be prepared for delays.
- Negotiate a mutually agreeable start date with the employee based on both legal requirements and practical considerations.
By following these guidelines, employers can ensure that they meet all legal requirements while smoothly integrating H-1B transfer employees into their workforce. With careful planning and attention to detail, hiring skilled international talent can be a successful and valuable strategy for your business.
