Ask the Experts: Hiring Candidates with H-1B Visas

Question: A job candidate we would like to hire is currently working for another company on an H-1B visa. Can we hire her under her current H-1B visa and can we ask when it expires?

Answer: Yes, under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), an H-1B employee may change workplaces once certain requirements are met. The new employer must have the applicant’s H-1B nonimmigrant employment information, including a valid Labor Condition Application (LCA) for that company, to file for a new petition on the H-1B worker’s behalf. Upon receipt that the petition has been filed, the employee can begin work with the new employer before the new visa has been issued.

Portability allows the employed H-1B worker to work for your company so long as you complete the following actions before she begins employment:

  • File the formal Petition for a Nonimmigrant Worker (Forms I-129/I-129W) on her behalf before the date of expiration of her authorized period of stay.
  • Submit, along with the petition, an unexpired, approved LCA covering the same work that your candidate is being hired to perform. IF you don’t already hold an applicable LCA, you need to apply for one to submit with the petition.

For further information, see Understanding H1-B Requirements, 20 C.F.R. § 655 Subparts H and I, and the Immigration and Nationality Act § 212(n).