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. Most experts recommend that the employee start work only after receiving confirmation from USCIS that the transfer has been approved.
In some cases, the employee can begin working once USCIS confirms that the transfer application fees have been processed. This typically occurs within 4 to 7 days, but it can sometimes take up to 1 to 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, candidates should wait until they have filed the H-1B transfer petition or even received 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.
H-1B Transfer vs. H-1B Change of Employer: Start Date Differences
Navigating the H-1B visa process can be complex, especially when it comes to changing employers. Understanding the differences between an H-1B transfer and an H-1B change of employer petition is crucial for maintaining legal status and ensuring a smooth transition.
H-1B Transfer:
- The term “H-1B transfer” is commonly used to describe the process where an individual on an H-1B visa changes employers. However, it is important to note that this is not an official legal term. Instead, it refers to the new employer filing a petition (Form I-129) on behalf of the employee.
- An H-1B transfer allows the employee to start working for the new employer as soon as the petition is filed, provided they are still within their six-year limit of H-1B status.
Change of Employer:
- A change of employer refers specifically to the formal process of switching employers while maintaining H-1B status. This involves filing a new petition with USCIS, which must be approved before the employee can begin working for the new employer.
- The primary distinction lies in the terminology; both processes involve similar steps but may have different implications based on how they are perceived legally.
Start Dates and Legal Status Implications
The start date for employment can vary significantly between these two scenarios:
- H-1B Transfer Start Date: When an employee transfers their H-1B status to a new employer, they may begin working for the new employer as soon as USCIS receives the transfer petition. This allows for minimal disruption in employment and helps maintain continuous legal status.
- Change of Employer Start Date: For a change of employer, the start date is contingent upon USCIS approving the new petition. Until approval is granted, the employee cannot legally start working at the new position, which can lead to potential gaps in employment.
What Happens If the Start Date Is Delayed?
Delays in the agreed-upon start date can create several issues:
- Employment Gaps: If there is a delay in starting with a new employer due to USCIS processing times or other factors, employees may face gaps in employment. This can affect their financial stability and career trajectory.
- Legal Status Concerns: A delayed start date can raise questions about an individual’s legal status, particularly if their previous employment has ended. It’s essential to maintain valid status during this period.
- Actions to Take: If a start date must be postponed:
- Communicate with both your current and prospective employers about the situation.
- Consider applying for a change of status or another visa type if necessary.
- Keep documentation of all communications regarding your employment status and any delays.
- Maintaining Legal Status: To avoid unauthorized employment during periods of unemployment:
- Ensure that your current employer files for an extension if your current H-1B status is close to expiring.
- Explore options such as applying for a B-2 visitor visa if you need additional time before starting your new job.
The Impact of Start Dates on Employee Benefits and Compensation
Start dates have significant implications for employee benefits:
- Pay and Benefits: The agreed-upon start date directly affects when an employee begins receiving pay and benefits from their new employer. If there are delays, employees may experience financial strain due to gaps in income.
- Accrual of Paid Time Off (PTO): Many companies have policies that determine when employees become eligible for PTO based on their start date. Delays can affect how quickly employees accrue vacation days or sick leave.
- Benefit Eligibility Requirements: Aligning start dates with benefit eligibility requirements is crucial. Employees should clarify with their new employer when benefits will begin and how any delays might impact their entitlements.
Employer Responsibilities in Setting the Start Date
Employers also have key obligations regarding start dates:
- Timely Documentation: Employers must ensure that all necessary documentation is filed promptly with USCIS to avoid delays in processing the H-1B petition.
- Correct Procedures: Failure to comply with correct procedures regarding start dates can lead to legal ramifications, including potential penalties or issues with future petitions.
- Managing Transitions: Employers should communicate clearly with employees about expected timelines and any potential delays in processing their petitions. Providing support during this transition period can help foster positive relationships.
What to Do If There Is a Gap Between H-1B Employment
If an employee faces a gap between leaving their previous employer and starting with a new one:
- Impact on H-1B Status: A gap in employment can jeopardize an employee’s H-1B status if it exceeds 60 days without proper action taken.
- Risk of Unauthorized Employment: Employees must avoid engaging in unauthorized work during this gap, as it could jeopardize their immigration status.
- Mitigating Employment Gaps:
- Consider requesting a change of status if eligible.
- Explore re-entering on a different visa type that suits your situation.
- Keep records of all applications and communications related to your employment status.
Potential Legal Risks for H-1B Transfer Employees Regarding Start Dates
Navigating the H-1B transfer process involves understanding the legal implications of start dates. Incorrect or delayed start dates can lead to various risks, including violations of immigration laws and potential employment gaps. This guide outlines these risks and provides strategies for H-1B transfer employees to maintain their legal status.
Legal Issues and Risks Associated with Incorrect or Delayed Start Dates
Violation of Immigration Laws:
An H-1B employee can legally begin work with a new employer as soon as the transfer petition is filed with USCIS. However, starting work before filing or approval of the petition can result in unauthorized employment, putting the employee’s immigration status at risk.
If an employee begins working based on a delivery confirmation of the petition rather than an official receipt from USCIS, they risk violating immigration laws if there are any issues with their application.
Consequences of Working Before Approval:
Engaging in employment before receiving approval from USCIS can result in severe consequences, including denial of future immigration benefits, deportation, or a ban on re-entry to the U.S.
Employees must understand that while they may begin work upon receipt of confirmation, this is not without risks. The safest approach is to wait until the transfer petition is fully approved.
Maintaining Legal Status:
To avoid falling out of status due to mistakes with the start date, employees should ensure that their current employer files the H-1B transfer petition before their current authorized stay expires.
It’s advisable to have open communication with both the current and prospective employers regarding timelines and expectations for the start date.
Understanding the Impact of Start Date on H-1B Visa Holders’ Dependent Status
The start date of an H-1B employee also impacts their dependents:
Dependents’ Status:
Dependents of H-1B visa holders (H-4 visa holders) are affected by the principal employee’s start date. If there are delays in the transfer process, it can impact their ability to maintain valid status in the U.S.
H-4 visa holders are typically allowed to remain in the U.S. as long as the principal H-1B holder maintains valid status. However, if there is a gap in employment due to a delayed start date, this could jeopardize their status.
Timing for H-4 Visa Holders:
H-4 dependents must align their timelines with that of the principal H-1B holder. Any delay in starting work can create uncertainty regarding their legal status.
Dependents should be aware that if there’s a delay in the transfer process, they may need to take proactive steps to ensure they remain compliant with immigration laws.
What Dependents Need to Know:
In case of delays, dependents should consult with an immigration attorney to understand their options and ensure they do not fall out of status.
They should also keep track of any changes in regulations or policies that may affect their eligibility for work authorization or other benefits.
How H-1B Transfers Affect Previous Employer Responsibilities
When an H-1B employee transfers to a new employer:
Status with Former Employer:
Once an H-1B transfer petition is filed by the new employer, the employee’s status with their former employer remains valid until either they resign or USCIS approves the new petition.
The previous employer is still responsible for maintaining compliance with USCIS requirements until the transfer is officially completed.
Terminating Employment:
The legal process for terminating the employment relationship involves notifying the previous employer once the new petition is approved or when an agreed-upon start date is reached.
Employers must follow proper procedures when terminating employment to avoid complications with USCIS regarding the employee’s status.
Compliance Requirements:
The previous employer must comply with USCIS requirements regarding notifications and documentation related to the employee’s status after filing a transfer petition.
Failure to comply can lead to legal ramifications for both employers and employees, including penalties or issues with future petitions.
Steps for H-1B Transfer Employees to Ensure Smooth Transition
To facilitate a successful H-1B transfer while managing start dates effectively:
Prepare for Transfer:
Gather all necessary documentation required for filing an H-1B transfer petition, including proof of prior employment and relevant qualifications.
Ensure that your new employer understands all requirements and timelines involved in filing the petition.
Communicate Clearly:
Maintain open lines of communication between yourself, your new employer, and your immigration attorney throughout the process.
Discuss potential start dates and any concerns regarding delays or issues that may arise during processing.
Handling Challenges:
If there are delays in processing or unexpected issues arise, consult your immigration attorney immediately to explore options such as applying for a change of status or extending your current visa if necessary.
Document all communications regarding your employment status and any changes made during this transition period.
Stay Informed:
Keep abreast of any changes in immigration policies or procedures that may impact your situation as an H-1B transfer employee.
Regularly check USCIS processing times and updates related to your application status.
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.
How Law and Visas Can Help?
At Law and Visas, our team of expert immigration consultants is here to make your travel to the U.S. straightforward and successful. Whether you’re applying for a TN Visa or an O-1 Visa, we handle every step—from preparing your application to gathering the required documents.
Our Immigration Consultants and Lawyers ensure that your application meets the highest standards, with no details missed. We’ll also keep you informed throughout the process and coordinate with the immigration office or embassy on your behalf.
Law and Visas has a strong record of helping clients secure the visas/permits they need to visit the United States. You can call us today at +234 812 5505 986 to learn how we can help you.
