How Employers Can Hire an H-1B Worker Who Is Already in the U.S.

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The immigration process for hiring a foreign national who is in the U.S., and sponsoring that worker for an H-1B visa, is quite similar to the process for hiring someone who is outside of the United States to be an H-1B worker -- assuming that the worker is already in the U.S. in lawful status. (These procedures will not work for someone who is in the U.S. unlawfully.)

However, there are a few differences in these processes that employers must be aware of in order to avoid potential delays or denials. These differences are explained below.

The H-1B Petition (Form I-129)

In order to hire a worker on an H-1B visa, the employer must file an I-129 petition with United States Citizenship and Immigration Services (USCIS), asking USCIS to approve the foreign worker for H-1B status. See "What Is USCIS Form I-129 in Regards to U.S. Work Visas" for more information.

Unlike with hiring H-1B workers who are overseas, on page 2 of Form I-129, the employer must say exactly what it wants USCIS to do with the worker’s status. The employer MUST select “Change of Status” here, thus asking USCIS to change the worker’s status from his or her initial status (for example, F-1) to H-1B. Failing to check “Change of Status” will significantly delay the H-1B worker’s ability to commence employment and could also jeopardize his or her immigration status.

Below is the general list of documents that the employer must include with the petition:

  • Signed Forms I-129, I-129 Data Collection, and I-129 H Supplement.
  • Filing Fee (The fee as of mid-2012 is $325, but USCIS changes its fees from time to time. Employers should check the USCIS website for the latest fee).
  • Fraud Detection Fee: $500 in mid-2012.
  • ACIWA Fee (depending upon the number of employees): either $750 or $1,250 in mid-2012.
  • Public Law Fee (this fee also depends upon the number of employees and the number of employees who are working in H-1B or L-1 status. Not all employers are required to pay this fee). It was $2,000 in mid-2012.
  • Support letter from the employer confirming the employer’s job offer to the foreign worker and explaining the terms and conditions of the worker’s proposed employment.
  • Certified Labor Condition Application from the U.S. Department of Labor (DOL).
  • Copy of the foreign worker’s educational degrees and transcripts.

In addition to these documents, which are required for all I-129 petitions, employers hiring H-1B workers who are already in the U.S. must also include proof that the worker is currently maintaining lawful status. Such evidence includes copies of the worker’s passport, Form I-94, and valid visa. NOTE: If the worker's current status is H-1B, see the final section of the discussion below.

Many H-1B workers initially come to the country as students to study at a U.S. university. When they arrive in the U.S., they are given Form I-20s. If the worker you plan to hire has a Form I-20, this should be included with the I-129 petition as well.

What's Easier: Hiring a Foreign Worker Who's in the U.S. or One Still Outside?

If you are an employer deciding whether to hire a foreign worker who is already in the U.S. or one who is outside the U.S., keep in mind issues surrounding when the worker can begin employment and how easy or difficult it will likely be for workers outside the U.S. to obtain a visa from their U.S. local consulate.

When the Worker Can Begin Employment

If the worker is outside of the U.S., or she can begin working for you right after obtaining the H-1B visa and entering the United States.

Commencing employment can be a bit trickier for foreign nationals who are already in the United States. They can begin working for you only on the date that USCIS approves their change of status. USCIS provides the date of the change of status on the I-797C Approval Notice issued after it approves the I-129 petition. Often, USCIS approves changes of status with a start date of October 1. In that case, the worker would have to remain in his or her current status for several months (depending on when you filed the petition) before actually beginning work for you.

Perhaps the worker is currently in F-1 student status, and already authorized to work for you. Many F-1 students obtain work authorization called Optional Practical Training (OPT), which allows them to work for an employer after graduating from college. For more information on how changing status from F-1 to H-1B affects such workers' employment authorization, read "Relief for Students Facing the H-1B/F-1 Cap Gap."

Employment start dates are crucially important to maintaining lawful immigration status, so employers should contact an immigration attorney before finalizing a date for the foreign national to first appear for work.

Whether the Worker's Home Consulate Will Approve the H-1B Visa

One of the potential issues in getting an H-1B visa for a worker who is outside of the U.S. is the trouble that person may encounter in trying to come to the United States. Once USCIS approves the I-129 petition, it forwards the petition to the U.S. consulate in the worker’s home country. The worker must then make an appointment at the consulate to obtain the H-1B visa. In some countries, notably in India, H-1B workers encounter serious difficulties in obtaining their visas, and without a visa they cannot travel to the United States.

Unfortunately, travel issues can affect H-1B workers who are in the U.S., as well. If someone changes status to H-1B worker in the U.S., that person's previous visa will no longer be valid. That's not a problem for the length of time that the worker remains in the United States. But if the worker wants to travel after changing status to H-1B, he or she will need to obtain an H-1B visa at the U.S. consulate in order to return to the United States. Only an actual visa can be used for U.S. entry. Proof of a change of status is not sufficient. But the worker could potentially encounter problems with an uncooperative consulate.

What If the Worker Is Already in H-1B Status and Working for Another U.S. Company?

If you are hoping to hire a worker who is already in H-1B status but currently working for a different company, you would also start the process by filing an I-129 petition with USCIS, and including all of the above-referenced evidence. Importantly, you must also include the worker's recent pay stubs from the other company, to show USCIS that the H-1B worker is maintaining valid H-1B status.

A big advantage to hiring an H-1B worker who is already employed with another company is that the worker can immediately begin working with the new employer as soon as USCIS receives the I-129 petition -- the worker does not have to wait for USCIS to approve the petition. As soon as USCIS issues the receipt notice, the worker can begin working for you. This is called H-1B portability.


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