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 might be foreign nationals who are in the U.S. on a visa or graduating from a U.S. college or university. Your company might 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 could 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."

First, Check the Worker's Current Immigration Status

If 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 as described in this article. 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, however, 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 visa 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.

Preliminary Steps Toward Hiring an H-1B Worker Who's Lawfully 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.

For most H-1B jobs, there is an annual quota of visas, which might impact when you can move forward with the process. If the H-1B candidate you're planning to hire already has H-1B status and was counted against a prior year's quota, you can go ahead and file your visa petition at any time. If, however, the candidate is subject to the quota, it gets more complicated.

In recent years the demand for H-1Bs has greatly exceeded the supply, so U.S. Citizenship and Immigration Services (USCIS) has conducted a registration to determine which employers may actually file I-129 visa petitions. If selected, you would then need to file the I-129 within a designated time window, usually starting the first week of April (that is, six months before the earliest possible start date of October 1).

For a more detailed discussion of these preliminaries (which apply whether the worker is inside or outside the U.S.), see Steps Employers Must Take to Hire an H-1B Worker: Overview.

Finally, you will need to prepare and file a petition on Form I-129 with USCIS, as described next.

Preparing H-1B Petition (Form I-129) for an H-1B Worker Currently in the U.S.

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 ($460 as of 2021).
  • Fraud Prevention and Detection Fee: $500 as of 2021.
  • ACWIA Fee, unless an exemption applies: The 2021 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, as 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 as of 2021).
  • 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 FLAG portal. It usually takes a week to receive the certified LCA.

The employer must mail the petition to USCIS. The processing time varies, but is usually at least two to four months.

For an enhanced fee of $2,500 (as of 2021), 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. (USCIS is also in the process of attempting to change this to 15 business days.)

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 might be authorized to work for you based upon student work authorization called Optional Practical Training (OPT). For more information, see Understanding the H-1B and OPT "Cap Gap" Extension for Foreign Students.

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.

Talk to a Lawyer

Need a lawyer? Start here.

How it Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you

Talk to an Immigration attorney.

We've helped 85 clients find attorneys today.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you