Qualified employees are in demand as we emerge from the global pandemic, as companies race to close the skills gap. According to a recent McKinsey study, 69 percent of organizations surveyed reported that their companies have increased skills-building now than before the COVID pandemic.
In the current talent market, international employees comprise a growing share of the available STEM talent. One way to attract top-tier, highly skilled talent is to sponsor H-1B candidates.
Suppose you’re offering a position to an H-1B candidate who works for another U.S. employer. In that case, it’s essential planning for the job candidate’s start date to set appropriate expectations with all stakeholders, including recruiters, hiring managers, and the candidate.
Keep reading to learn more about an H-1B candidate’s start date when recruiting and hiring top talent.
When Can the H-1B Candidate Start Work?
One question that gets a considerable amount of attention is when the H-1B transferring candidate can start work?
Legally, the candidate may begin work for a new employer upon delivery of the H-1B visa transfer petition by the U.S. Citizenship and Immigration Services (USCIS) or upon receipt of the I-797C Notice of Action receipt notice, as permitted by the American Competitiveness in the Twenty-First Century (AC21). The I-797C Notice of Action conveys information to the applicant regarding receipt, transfer, or rejection.
However, conservatively, it’s often suggested that the H-1B candidate begin work only after USCIS’ approval of the visa transfer, or at a minimum, upon confirmation that the USCIS has cashed the filing fees accompanying the transfer application. For the latter to occur, the employer and candidate must wait 4-7 days to 1 to 2 weeks. Again, legally, the H-1B foreign national may begin work before the formal approval of the transfer petition.
However, employers should base start dates on their industry, individual corporations, and talent competition, among other factors. When making these decisions, employers should consider the following possibilities for H-1B foreign nationals to begin work and how each may impact the candidate’s start date.
Consideration #1: Upon Delivery of the Petition
Although not considered the best practice, the earliest an employee can start is upon confirmation from FedEx or UPS (with a hard copy receipt) that the petition has been delivered to USCIS, assuming that:
- The candidate is currently in H-1B status in the U.S.;
- The candidate has maintained lawful H-1B status with their current employer, proving this employment with recent paystubs; and
- The candidate has been lawfully admitted to the U.S.
Although the faster approach to a start date, this delivery process can still take three to four weeks. For example, it often takes approximately one week to gather any initial data and documents from the employer and candidate. This can take significantly less or more time depending on these parties’ responsiveness, availability of information, and familiarity with immigration requirements (e.g., the characteristics of a “strong” job description for immigration purposes).
Additionally, it will take another week or so for the Department of Labor (DOL) to process the Labor Condition Application (LCA), required before the H-1B transfer petition is filed. Unfortunately, there is no way to accelerate this step.
Finally, it will take another week to finalize and physically submit the application. This can often happen in parallel with the DOL’s review of the LCA, potentially speeding the process along by a couple of days.
A case turnaround of closer to two weeks is feasible, although additional time is often needed to account for unanticipated delays from the employer or candidate.
Practically, however, as this approach is not a best practice, many employers and candidates are not comfortable with a start date based solely on FedEx or UPS confirmation of delivery, as too many risks could surface. For example, since the USCIS can reject these petitions for a variety of reasons, including missing signatures or incorrect filing fees, most employers and H-1B candidates would prefer to have more assurances that the transfer petition will be approved.
Consideration #2: Upon Receipt of the Petition
Another option for organizations to consider would be to base the H-1B foreign national’s start date on receipt of the transfer petition—not the delivery of the transfer petition. Upon receipt, the USCIS shall issue proof of receipt, coming in electronic form in two to four days if Premium Processing is requested, or seven to 14 days if the case is not filed with Premium Processing.
This option gives both the employer and the applicant more confidence that the transfer petition was received by the USCIS, beyond just a FedEx or UPS receipt.
Like in the “upon delivery” approach, several factors can still affect the start date after receiving proof of receipt by the USCIS. Here are some additional considerations which may impact the candidate’s start date, even in the more conservative approach of waiting until upon receipt of the petition:
- The time required for both the employer and the candidate to complete the necessary forms for the transfer petition (including signatures);
- The Department of Labor’s (DOL) processing time of the Labor Condition Application (LCA), which is required before the H-1B transfer petition is filed; and
- The candidate’s preference for notice to their current employer (i.e., typically two weeks).
We’ll cover the candidate’s notice to their current employer in more detail in the “Best Practices” section below.
Consideration #3: Upon Approval of the Petition
A third option for determining the start date—and the most conservative approach—is to wait until the employer and foreign national receive the USCIS’s petition approval. Although this approach gives the highest level of assurance to both the company and the job candidate, it also has a potential downside.
For example, an employer and candidate may be waiting on USCIS approval for four to six weeks. Let’s look at this part of the approval process more specifically as it informs the candidate’s start date if you choose to wait until “upon approval.”
With Premium Processing, the USCIS will make its initial decision within 15 calendar days of the receipt date (the date USCIS denotes on the receipt notice, not the date the case is delivered). That initial decision could be an approval of the transfer petition, but it could also be a request for additional evidence (“RFE”).
Depending on the complexity of the RFE, it could take anywhere from one to four weeks to respond to it, with the USCIS generally making a final petition decision within 15 calendar days of receiving the RFE response. Note, the USCIS can issue a second RFE, but that is infrequent.
Without Premium Processing, a decision on the initial filing and any subsequent RFE responses can take several months (tracked here), so setting a start date based on approval for a petition not filed with Premium Processing is generally not feasible for most employers.
Best Practices to Ponder
When determining which approach is best for your organization, consider the following best practices, helping you establish consistent policies and procedures for your H-1B transfer hires.
Start Dates Are a Point of Negotiation
Ultimately, the start date is a point of negotiation between the employer and the candidate in the recruiting process. Employers are often eager to have candidates start as quickly as possible. In contrast, candidates prefer to take the safest route possible to avoid losing work authorization, potentially having to leave the country if the application is denied and they are no longer employed.
When negotiating start dates, keep all lines of communication open, allowing both the employer and the candidate to agree upon which start date is best in that particular set of circumstances.
Giving Notice to the Current Employer
A question often asked is when the candidate should give notice to their current employer? As is customary in most industries, the candidate may want to provide a standard two weeks’ notice. However, notice can be provided at any time.
Typically, in H-1B transfer cases, candidates often wish to provide notice at one of the key process milestones indicated above (upon delivery of the petition, upon receipt of the petition, or upon approval).
However, we broadly recommend that notice not be given until the petition has been filed with USCIS. Depending on the facts of the case, it is preferable to wait until USCIS’s approval, which might require consideration of using Premium Processing for an additional government fee.
Be sure to account for this notice period when determining a start date.
When recruiting highly skilled H-1B employees, consider how your start date decisions impact your specific talent strategy and align with your broader company culture. Interview your international employees and partners to explore their perspectives on the matter. Incorporate their thoughts into your process.
Finally, reach out to your immigration partners to discuss what works best for your unique talent needs.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a Bridge-affiliated partner attorney or another qualified legal professional.