Hiring an H-1B Worker? Here's What Employers Need to Know

In recent weeks, I've seen an uptick in questions from employers looking seriously at hiring H-1B workers—especially after the recent wave of tech layoffs has brought many highly skilled non-U.S. professionals onto the job market. If you're an employer considering hiring someone currently on an H-1B visa, there are some important considerations you'll want to understand first. Let's unpack everything you need to know before diving into the hiring process.

Understanding the H-1B Landscape Right Now

Right now, many talented H-1B professionals are actively looking for new opportunities. Recent layoffs from some major tech companies have placed incredibly qualified people back into the job market. You might have noticed that a significant number of these H-1B candidates are originally from India—this is not a coincidence.

Why Do So Many H-1B Professionals Tend to Be from India?

Here's a quick explanation: Employment-based green cards are allocated by country of birth, with each country receiving roughly equal quotas—imagine it's like dividing a pie evenly among all countries. Naturally, a large country like India, with far more professionals pursuing U.S. employment opportunities, quickly reaches its annual quota. That means H-1B workers from India experience significantly longer waiting times for permanent residency (green cards).

Practically speaking, while H-1B status is typically capped at a six-year maximum, there's a built-in allowance for extensions beyond six years for H-1B workers who have hit certain milestones in their green card processes (a Labor Certification filed at least a year prior qualifies someone for 1-year extensions, and I-140 approval qualifies someone for 3-year extensions). Because the backlog for Indian professionals is so extensive— spanning many years—employers will regularly come across highly experienced candidates who have held "temporary" H-1B status for over a decade since graduating from American universities.

What You Need to Know About Green Cards and Labor Certification

To hire an H-1B worker, it’s helpful to have a basic understanding of the green card process. Before anyone can get an employment-based green card, their employer must first file a "Labor Certification" (also known as PERM). Rather than proving the candidate is the "absolute best" employee out there, a Labor Certification application means searching and ultimately concluding that there was no minimally qualified American available at the time the employer searched for candidates.

The U.S. government caps employment-based green cards at approximately 150,000 each year—far below demand. Because of this backlog, many qualified, high-level professionals remain on H-1B visas far longer than anyone envisioned when our modern immigration system was created.

Key Considerations When Hiring an H-1B Candidate

If you've found an H-1B worker who seems like a great fit, here's what you need to consider next:

Timing & Start Dates

Once you've decided to extend an offer to an H-1B candidate, remember that you can't simply onboard and have them start immediately. You'll first need to file a "Change of Employer" H-1B petition with U.S. Citizenship and Immigration Services (USCIS).

You don't necessarily have to wait until approval—your employee can begin working once USCIS has acknowledged receipt of the petition. However, some employers and candidates prefer waiting for formal approval before the worker officially starts. Here are a couple of scenarios you'll consistently see:

• Immediate Start:
  If the H-1B worker has already stopped working at their prior job, there may be urgency on both sides to start ASAP to maintain their lawful visa status, and to onboard with the new organization.
• Delayed Start (Following Notice Period):
  If currently employed elsewhere, your H-1B candidate might prefer waiting until the H-1B petition is approved before resigning from their existing position. Only then will they give proper notice and transition to your company smoothly.

I recommend clarifying these expectations upfront. Talk openly with your H-1B candidate about when they want or need to start, and ensure you set realistic expectations around timing.

Navigating the Petition Filing Process (Step-by-Step)

Here's a streamlined process overview to help you understand the key steps involved:

1. Gather Job Information

As soon as you decide to hire, inform your immigration attorney. You'll need to settle on the following:

• Job location and position details
• Detailed job duties and responsibilities
• Offered salary and any employment conditions

2. Labor Condition Application (LCA)—8 Day Wait

Before submitting the actual H-1B petition, you'll need to file a separate Labor Condition Application (LCA) with the Department of Labor (DOL). This step is mandatory, establishing that you are offering an appropriate wage and providing fair conditions. The DOL approves LCAs in about eight days.

(Side note: Be aware there's a similarly named step in the green card process—Labor Certification Application—which is different from the LCA used for H-1Bs.)

3. Filing the H-1B Petition

After the DOL approves your LCA, your lawyer can file the H-1B petition with USCIS.

• Receipt of this petition officially allows the employee to start work (if your employee prefers to begin promptly).
• Premium processing for an extra $2,805 is available for faster adjudication (within 15 business days), allowing better planning around start dates. But note that the clock stops if USCIS issues a Request for Evidence, resetting when you respond.

4. Choosing a Realistic Start Date

Employers can request any desired start date on the petition. However, plan carefully—if all processes align faster than anticipated, you risk having the candidate waiting unnecessarily or faced with an awkward interim period. I generally recommend setting an earlier, more aggressive date rather than a later one, preventing unnecessary downtime for you and your candidate. Remember: requesting an earlier date doesn't guarantee approval by that date. It's simply a proactive step.

5. Completing the I-9

If your new employee starts working while you're still awaiting approval from USCIS, make sure to carefully follow the government guidelines (available online in the M-274 Handbook) for completing the Form I-9 in such situations.

Communication and Collaboration with Your Attorney

Remember, you're not going through this alone. Your immigration attorney is there to help you navigate these detailed processes, deadlines, and best-case timing scenarios. Keeping open and clear lines of communication with your attorney helps align employer, employee, and USCIS timelines—and ensures compliance, minimized risk, and smoother onboarding.