How Employers Can Hire an H-1B Worker Who Is Already in the U.S.
U.S. employers can hire highly skilled or professional workers who are working for other employers on H-1B visas. Here's how it works.
For U.S. companies that need highly skilled or professional (degreed) workers, some of the most likely candidates may be foreign nationals who are in the U.S. on a visa or graduating from a U.S. college or university. Your company may have even employed a particular worker, perhaps part time, as a student. Assuming the job and worker meet the criteria described in “H-1B Visa to the U.S.: Who Qualifies?,” sponsoring the worker for H-1B status may be a worthwhile endeavor.
As an initial note of clarification, you would be sponsoring to change or extend the worker's immigration "status," which typically is reflected on the I-94 Arrival/Departure Record or by a handwritten note in the passport next to an entry date stamp. In contrast, a "visa" is merely an entry document that the U.S. consulate abroad affixes to the passport and that allows the foreign national to apply to enter the United States. Once in the U.S., the visa is less important. Therefore, because this article relates to hiring an H-1B worker who already is in the U.S., we will be referring to the worker's immigration status rather than to a “visa.”
Procedural Steps Toward Hiring an H-1B Worker Who Is Already in the U.S.
There are a few steps to the H-1B process for hiring a foreign national who is already in the United States.
As the employer, you first must establish the prevailing wage for the position, which is the statistical average wage for workers in the job in the same area. See H-1B Employers: What Wage Must You Pay?. Next, you need to file a "Labor Condition Application" with the U.S. Department of Labor to verify that your proposed employment of the H-1B worker meets certain wage and working condition requirements. Finally, you need to prepare and file a petition on Form I-129 with United States Citizenship and Immigration Services (USCIS).
Assuming the prospective employee is in the U.S. in lawful status—most likely because the person properly entered the U.S. with a visa and is maintaining the status granted—the person will probably be able to change or extend status to start working for you. For H-1B workers changing from one H-1B employer to another, see H-1B Portability—How Workers Can Change Employers.
If the person is in the U.S. without lawful status, such as someone who did not see an immigration officer upon entry, or who entered with a visa but since has overstayed the authorized period of stay, it’s a different story. When an employer files an H-1B I-129 petition for someone who is in the United States, it is asking USCIS to change and/or extend that person's immigration status. This means that there must be a lawful status to change and/or extend. It’s legally impossible to change or extend the status of someone who has no status. In these situations, consulting an immigration attorney can help determine whether other possibilities exist.
The following provides a brief summary of the H-1B petition requirements to sponsor someone in the United States.
Preparing the H-1B Petition (Form I-129)
To sponsor an H-1B worker, the employer must file an I-129 petition with USCIS, asking the agency to approve the foreign worker for H-1B status. Depending upon the person's current status, the employer asks USCIS either to extend the person's status or to change and extend the person's status. For example, for a person in F-1 student status, your request may be to change the person’s status from F-1 to H-1B and extend the period of the person’s authorized stay in the United States.
Below is the list of materials that the employer typically must include with the petition:
- Forms I-129 Petition for a Nonimmigrant Worker, H Classification Supplement to Form I-129, and H-1B Data Collection and Filing Fee Exemption Supplement. Both the I-129 Petition and H Supplement require signatures. The Data Collection form does not require a signature.
- Support letter from the employer confirming the job offer to the foreign worker and explaining the terms and conditions of the proposed employment.
- Copies of the foreign worker’s educational degrees and transcripts. If the degree and transcript are from another country, include a U.S. equivalency evaluation report.
- Copies of the foreign worker's identification and current immigration documents, as applicable (passport, visa, I-94 Arrival/Departure Record, USCIS Forms I-797 for prior applications or petitions, SEVIS Form I-20 for F-1 students, etc.).
- Documentation to show that the foreign worker/prospective employee is maintaining lawful status in the U.S., such as transcripts for F-1 students or paychecks for H-1B workers.
- Base Filing Fee ($325 as of 2016; see www.uscis.gov for current fees, as USCIS changes its fees from time to time).
- Fraud Prevention and Detection Fee: $500 as of 2016.
- ACWIA Fee, unless an exemption applies: The 2016 fees were $750 for employers with 25 or fewer full-time employees or $1,500 for employers with more than 25 full-time employees.
- Public Law 114-113 Fee (required for employers that have 50 or more employees in the U.S., more than 50% of whom are in the U.S. in H-1B or L status): $4,000. This fee increased from $2,000 on December 18, 2015, with the enactment of the FY2016 omnibus appropriations bill.
- Certified Labor Condition Application ("LCA") from the U.S. Department of Labor (DOL). As mentioned above, you need to determine the prevailing wage and then file the LCA by using the Department of Labor's iCert portal. It usually takes a week to receive the certified LCA, which the DOL sends via email.
The employer must mail the petition to USCIS. The processing time usually is two to four months.
For an enhanced fee of $1,225 (as of 2016), USCIS guarantees an initial processing time of 15 calendar days. If USCIS asks for additional documents, a new 15-day clock begins from the time USCIS receives your response.
Keep in mind that for most H-1B jobs, there is an annual quota of visas, which may impact when you can file your petition. If the H-1B candidate you're planning to hire already has H-1B status and previously was counted against a prior year's quota, you can file your petition any time. If the candidate is subject to the quota, you will likely need to file the I-129 as early as possible, which is the first week of April (that is, six months before the earliest possible start date of October 1).
In recent years the demand for H-1Bs has greatly exceeded the supply, so USCIS has conducted a “lottery” to select which I-129 petitions, among those submitted in the first week of April, may proceed.
When the Worker Can Begin Employment
In most cases, the prospective employee will be authorized to start working for you in H-1B status on the effective date of the approved H-1B petition. As noted above, due to the quota, the effective date is often the next October 1. See H-1B Portability--How Workers Can Change Employers for information on the start date for someone who currently has H-1B status for employment with another organization.
If the worker is currently in F-1 student status, he or she already may be authorized to work for you based upon student work authorization called Optional Practical Training (OPT). For more information on how changing status from F-1 to H-1B affects such workers' employment authorization, see Relief for Students Facing the H-1B/F-1 Cap Gap.
Employment start dates are important to maintaining lawful immigration status. By consulting qualified immigration counsel, employers can help their prospective employees maintain lawful status while planning an appropriate start date.