H-1B transfer delays and the start-date problem

H-1B portability is a genuinely useful provision: a candidate can begin work as soon as the new petition is filed, rather than waiting months for approval. It also means the employer is carrying someone on payroll while an adjudication it cannot control decides whether that was lawful.

How portability works

A beneficiary already in H-1B status may begin employment with a new employer upon the filing of a non-frivolous petition, provided they were lawfully admitted, have not been employed without authorization, and the petition is filed before the current period of stay expires.

The word doing the work is filing. Not approval, not receipt of the notice — filing. Which means the start date can be set with confidence, and normally is.

The exposure appears if the petition is later denied. Employment authorization under portability ends, and the position of both parties for the intervening period becomes complicated. It is not a common outcome, and it is not one you want to meet without having thought about it.

Why the delay makes it worse

A petition adjudicated in three weeks leaves a short window of uncertainty. One that sits for five months leaves a long one, during which the employee has relocated, resigned from a role they cannot return to, and possibly moved a family.

The longer the pendency, the greater the practical cost of a denial to everyone, and the harder it becomes to unwind. This is the clearest case in the whole H-1B category for buying premium processing as a matter of policy rather than case by case.

Writing around the risk

• Premium process transfers by default. The fee is small against the cost of an unwound relocation, and it converts an open-ended risk into a two-week one.
• Say so in the offer letter. Employment is conditional on maintenance of work authorization. Candidates understand this; discovering it later is what causes damage.
• Decide the relocation timing. Some employers delay reimbursed relocation until approval. It is a real trade-off between candidate experience and exposure, and it should be a policy rather than an improvisation.
• Do not let the candidate resign before filing. The sequence matters and it is easy to get wrong under offer pressure.

Questions

Can the employee work for both employers during the transfer?

Concurrent H-1B employment is possible with a petition supporting it. Portability alone does not create it, and assuming otherwise is a compliance problem.

What if the petition receives an RFE?

Portability continues while the petition remains pending. The uncertainty simply lasts longer, which is the whole problem.

General information, not legal advice. Rules and processing practice change; verify against the agency's own published figures and take advice on your own facts.