With the wage-weighted H-1B lottery making new cap cases harder to win, more employers are recruiting professionals who already hold H-1B status with another company. These hires can usually be filed at any time of year without a new lottery selection, and under the portability rules in 8 CFR 214.2(h), the worker can generally start once the new petition is properly filed. We explained how portability works for workers in our earlier post on H-1B portability. This post is for the employer: what to confirm before the offer, what has changed in 2026, and how to protect the hire after the filing.
Before You Make the Offer
- Confirm the candidate’s current status. Ask for the most recent I-797 approval notice, the current I-94 record, and recent pay stubs showing they are working for the H-1B employer in the approved role.
- Check for gaps. If the candidate has already left their job, find out the last day of work. Status after a layoff depends on a grace period, and DHS has proposed eliminating the 60-day grace period.
- Count the remaining time. Ask how much of the six-year H-1B limit has been used, how much time abroad may be recaptured, and whether a PERM or I-140 is pending or approved, since that affects extensions past six years.
- Confirm the worker was counted against the cap. A worker currently with a cap-exempt employer, such as a university, may need a lottery selection to move to a cap-subject company.
- Review the role. The job must be a specialty occupation, and the duties, degree requirement, and wage level must be consistent.
What Has Changed in 2026
- Complete filings matter more. USCIS policy now allows officers to deny certain petitions without first sending a request for evidence, so the petition should include all key evidence when filed.
- The $100,000 H-1B payment, extended in September 2026, is aimed mainly at new petitions for workers outside the United States. Based on USCIS guidance to date, a change of employer for a worker already in the U.S. in valid status is generally not covered, but confirm the current rules for each case.
- Employers with 50 or more employees, more than half of them in H-1B or L-1 status, also owe the 9-11 Response and Biometric Entry-Exit fee on most H-1B petitions they file, including change-of-employer petitions.
- DHS has proposed ending deference to prior approvals, which could mean closer review when the worker’s H-1B is later extended.
Setting the Start Date
Portability lets the worker start once the petition is properly filed, but the employer chooses how much risk to take. Starting on receipt is the fastest option. Waiting for approval, which premium processing can bring in about 15 business days, avoids the problem of a denial after the person has already left their old job. If the new petition is denied, the worker’s authorization to work for you ends, and they may need to leave the country. Agree on the start date and the plan for that risk in writing before the candidate resigns.
After the Hire
- Post the Labor Condition Application notice at the worksite and keep the public access file current.
- Pay at least the required wage from the start date, and file an amended petition before any material change in job duties or worksite.
- Plan the green card early. A worker with an approved I-140 from a prior employer can usually keep that priority date for a new case, which can shorten the wait considerably.
Frequently Asked Questions
Does hiring a current H-1B worker require a new lottery registration?
Generally no, if the worker was already counted against the cap. Workers coming from cap-exempt employers may be an exception.
When can the new employee start?
Under portability, generally once the new petition is properly filed, provided the worker is in valid status. Many employers wait for a receipt notice or an approval to reduce risk.
Does the $100,000 H-1B payment apply to a transfer?
Based on USCIS guidance to date, it is generally not required for a change of employer for a worker already in the U.S. in valid status. Confirm the rules before filing.
What happens if the petition is denied?
The worker’s authorization to work for the new employer ends, and they may need to leave the United States or find another basis to remain.
Can the worker keep their green card priority date?
Usually yes, if a prior employer’s I-140 was approved and was not revoked for fraud or a similar reason.
If you or your family members have questions about how this or other immigration and nationality matters may affect you, please do not hesitate to contact the immigration and nationality lawyers at Nachman, Phulwani, Zimovcak & Batra (NPZ & B) Law Group, P.C. You can reach us by emailing info@visaserve.com or by visiting our website at www.visaserve.com for more information.