Tuesday, July 21, 2015

Can I Hire an Employee Already Working on an H-1B Visa?

As employers who rely on foreign workers are undoubtedly aware, October 1 marks the date that employees who obtained H-1B visas in April 2015 can begin to work. Companies who were unable to obtain H-1B visas for all of their prospective employees, however, may be scrambling right now to fill open positions. This often leads employers to consider hiring immigrants already here on an H-1B visa working for another employer. Can an employer do this?

Yes. An employer may hire a foreign worker here on an H-1B visa working for someone else. Doing so, however, will involve more work than hiring a domestic employee. 

An employer wishing to hire a foreign employee already working in the United States on an H-1B visa must file a new H-1B visa petition for that employee. This requires an employer to fill out Form I-129 and file it with the United States Citizenship and Immigration Services (USCIS). In order to complete Form I-129, an employer will need a copy of the employee’s:

  • H-1B approval notice (Form I-797);
  • Last 2-3 paystubs (this is necessary to prove that the employee is actually working on an H-1B visa);
  • Pages in the employee’s passport;
  • Most current visa stamp; 
  • University diploma(s) and transcript(s);
  • Job offer letter containing the employee’s job title and salary, signed by both the employee and employer and detailing the employee’s job responsibilities.

The Form I-129 also requires a $325 filing fee. 

Luckily, an employee already here on an H-1B visa will not be subject to the cap on these visas. Only 65,000 H-1B visas are issued each year, which means that obtaining one can be tricky. An employer hiring an employee already working here on an H-1B visa does not, however, have to worry about this, as an employee on an H-1B visa transferring from one employer to another will not be subject to the H-1B visa cap. 

As for employees working on H-1B visas, transferring to a new employer does not extend this visa. This means that an employee’s H-1B visa will last only three years from the date the employee first obtained it. 

For answers to specific questions regarding H-1B visas, contact an experienced labor and employment attorney.