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.

By , Attorney · Capital University Law School

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. (Also see Steps Employers Must Take to Hire an H-1B Worker: Overview.)

As a 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 so as to allow the foreign national to request entry to 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 immigration status—most likely because they properly entered the U.S. with a visa and are maintaining the status granted—they will probably be able to change or extend status to start working for you as described in this article.

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 remaining in the U.S., 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 paid to 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" or LCA 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 limit on 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 I-129 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, which is when the federal fiscal year begins).

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 visa petition, as described next.

Preparing H-1B Petition (Form I-129) for 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 worker currently in F-1 student status, your request could be to change the person's status from F-1 to H-1B and extend the period of their authorized stay in the United States.

Below is the list of materials that the employer typically must include with the I-129 petition (reflecting a new fee structure that took effect April 1, 2024):

  • 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, and so on).
  • 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. USCIS also recently began requesting paychecks for F-1 graduates who are participating in Optional Practical Training.
  • Base Filing Fee: $780.
  • Fraud Prevention and Detection Fee: $500.
  • ACWIA Fee, unless an exemption applies: $750 for employers with 25 or fewer full-time employees or $1,500 for employers with more than 25 full-time employees.
  • Asylum Fee of $600 (new in 2024), which is reduced to $300 for employers with 25 or fewer full-time employees and zero for nonprofit organizations
  • 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.
  • 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.

As of April 2024, the employer may submit the petition to USCIS by mail, according to the filing addresses posted on the USCIS website, or electronically through a myUSCIS account. The processing time varies, but is usually at least two to four months.

For a substantially enhanced fee, USCIS will guarantee an initial processing time of 15 business days. (That fee went up to $2,805 on February 26, 2024.) If USCIS asks for additional documents, a new 15-day clock begins from the time USCIS receives your response. This expedited option is called "premium processing" and requires submitting Form I-907. Be sure to check the filing address for the petition, because USCIS changes them from time to time and often has a separate address for premium processing cases. You can request premium processing initially with your petition or upgrade to premium processing later if the normal processing times are taking too long.

When the Foreign Worker Can Begin Employment

In most cases, the prospective employee will be authorized to start working 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, though it might be different for someone who currently has H-1B status for employment with another organization.

A worker who is currently in F-1 student status might already be authorized to work based upon a type of student work authorization called Optional Practical Training (OPT). For more information, see What If My F-1 Student Status Expires Before USCIS Approves Me for H-1B Temporary Worker Status?.

Employment start dates are important to maintaining lawful immigration status.

Finally, Be Sure to Ask About the Foreign Worker's Family's Immigration Status

As part of the hiring process when gathering the employee's immigration documents, ask whether there are any dependent family members who are in the United States in H-4 status or who need to change from another status to H-4 to remain in the United States with the H-1B worker. Legally married spouses and children under age 21 are eligible for H-4 status. If there are dependents abroad, they can apply for H-4 visas based upon the H-1B Approval Notice (USCIS Form I-797) once the new employee is on board.

Also, if the H-1B worker has achieved certain milestones toward the green card process, the spouse also could be eligible to apply for an Employment Authorization Document.

The H-4 and Employment Authorization Documents are separate applications signed and submitted by the family members, but the employer can include those applications with the H-1B petition if submitting the petition by mail. (As of 2024, online filing is not allowed for concurrent submission of the H-1B petition and H-4 application.) For convenience and efficiency, most employers ask the attorney who is preparing the H-1B petition to handle the family's applications.

For More Information

See H-4 Visas for Family of H-1B Visa Holder for more information on family matters. And by consulting qualified immigration counsel, employers can help their prospective employees maintain lawful status while planning an appropriate start date.

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