A company may be able to hire a professional who already holds H-1B status without waiting for another annual cap selection. The answer depends on the worker's cap history, available H-1B time, and the proposed employment. An existing H-1B approval does not resolve every issue for the new employer.

What is commonly called an H-1B “transfer” ordinarily involves a new petition by the hiring employer. The employer must address the Labor Condition Application and support the proposed specialty occupation and the worker's qualifications.

When Can the Employee Start?

Eligible H-1B workers may begin new employment after the new employer properly files a qualifying petition, rather than waiting for approval. Portability depends on the statutory requirements, including timely filing and the worker's admission and employment history. A job offer, certified LCA, or petition being prepared does not itself authorize a start.

Before agreeing on a start date, review the I-94, prior approvals, employment history, any termination date, and pending applications. Travel and a requested extension of stay require separate attention. The employer should coordinate immigration review with HR before the employee resigns or begins onboarding.

Review the Job and Worksite

The new employer should provide a position description that reflects the work the employee will actually perform. Identify degree requirements, compensation, the work location, remote arrangements, and any client-site assignment. Changes between the offer and filing can complicate the case.

A growing startup should also be ready to explain its operations and the proposed role. Counsel can determine which business records are relevant to the particular case.

Prepare for a Focused Review

Gather the offer and job description, salary and worksite information, the employee's resume and degree records, current I-94 and H-1B approvals, recent evidence of employment, and the desired start date. Identify any gap in employment, pending status request, or planned international trip.

Fariba Faiz Law Offices PC advises employers and professionals on H-1B changes of employer and related immigration planning. Schedule a consultation to review the proposed hire and timing. Employers seeking representation may request a complimentary introductory consultation link.

Official Resources

USCIS employer guide to temporary employment · DOL H-1B and Labor Condition Application guidance

General information only, not legal advice. Individual eligibility and current filing requirements require case-specific review. Reviewed October 13, 2026.