Why this matters now
In today’s tight labor market, both employers and foreign national professionals are moving quickly to secure opportunities. An H-1B transfer, however, is not simply a paperwork exercise. Every step in the process carries legal consequences, from the timing of the Labor Condition Application to the moment an employee can lawfully begin working under portability.
In addition, the rise of hybrid and remote work has added new complexities in worksite compliance and wage obligations. This article explains how H-1B transfers work in practice, highlights common traps, and provides practical timing guidance that can help employers and employees stay compliant while moving efficiently.
Portability and when employment can begin
H-1B portability is often misunderstood, but it provides real flexibility if used correctly. A foreign national who is already in valid H-1B status may begin working for a new employer once that employer has properly filed a nonfrivolous H-1B petition. The start date is either the date of filing or the requested start date on the petition, whichever is later.
This means there is no requirement to wait until the petition is approved before beginning employment, as long as the worker meets the portability eligibility requirements. Those requirements include admission into the United States in H-1B status, maintenance of that status, and the absence of unauthorized employment.
If the petition is later denied, the individual must stop working immediately because employment authorization ends upon adjudication. It is also important not to confuse portability with the 240-day rule. The 240-day continuation of work authorization only applies to extensions filed by the same employer, not to transfers between employers.
The sequence of timing: LCA, receipt, and start date
The first step in any transfer is the Labor Condition Application. Employers must obtain certification from the Department of Labor, which typically takes about seven business days if the application is complete and accurate. The LCA must also be properly posted for ten consecutive business days, whether on-site or electronically, and must include details such as the occupational classification, the wage rate, the period of employment, and the work locations.
Only after this step can the petition be filed with USCIS. Once USCIS accepts the filing and issues a receipt notice, the employee can begin work under portability if they meet the requirements. Employers should retain the receipt notice and evidence of status in the file, and they must also ensure that the Form I-9 is completed correctly to reflect work under portability. Careful sequencing of these steps is critical to avoid gaps in employment authorization.
The 60-day grace period for laid-off employees
The current regulatory framework allows most H-1B employees a grace period of up to sixty consecutive days, or until the expiration of their I-94, whichever comes first, when their employment ends. During this period, the worker may file a new petition, change status, or depart the United States. If the new employer files within this window, the worker can preserve a period of authorized stay and often begin working on the receipt under portability. Employers hiring laid-off workers should be mindful of this timeline and move quickly to ensure the new petition is filed before the grace period ends.
Remote work and location compliance issues
Worksite location is one of the most common pitfalls in today’s hybrid environment. The Administrative Appeals Office in Matter of Simeio Solutions made clear that a move to a new metropolitan area that requires a different LCA constitutes a material change and requires an amended H-1B petition before the employee moves. Within the same area of intended employment, meaning within normal commuting distance, employers may rely on the existing LCA but must still post notices at each worksite.
However, when an employee’s new location is in a different commuting area, a new LCA and amended petition are required. Employers should also recognize that a home office counts as a worksite if the employee regularly works there. Treating the residence as a worksite ensures proper posting and wage compliance. The short-term placement option under Department of Labor rules is very narrow and cannot be used for initial placement or to avoid filing when a new location is clearly permanent. Attempting to rely on it as a workaround exposes employers to liability.
Wage compliance pitfalls in transfers
The wage requirements under the H-1B program do not change simply because a petition is a transfer. Once employment begins, the worker must be paid at least the higher of the prevailing wage or the actual wage listed on the LCA. This applies even if the employee is temporarily nonproductive because of a lack of work or delays in assignment, provided the lack of work is caused by the employer.
The concept of “benching” without pay is a frequent enforcement trigger. Employers must also account for differences in prevailing wage when the worksite location changes. If a worker is moved to a higher-cost metropolitan area, the prevailing wage may increase, and the higher wage must be paid from the start of employment at that location. With the expansion of remote work, these wage shifts are more common, making it essential to align HR practices with immigration compliance.
Putting it all together
An effective H-1B transfer requires careful planning at each stage. Employers must identify all intended worksites, including home offices and client sites, before filing. If the new position requires an amended petition under Simeio, it should be filed before the employee moves.
The Labor Condition Application must be filed and posted before the I-129 petition is submitted. Once USCIS issues a receipt notice, and if the worker meets the portability criteria, employment may begin immediately. Employers should also plan around the sixty-day grace period when hiring individuals who have been recently laid off. Above all, they should pay close attention to wage compliance and avoid benching, since violations can result in significant back pay liability.
If you have questions about an H-1B transfer, whether you are an employer navigating compliance or an employee planning your next career move, our attorneys are here to help. We provide tailored guidance on timing, wage compliance, and remote work considerations to ensure your transfer is both efficient and compliant.
Book a consultation with our team today to discuss your situation in detail and receive strategic advice for your immigration needs.
