Q. We are interested in hiring someone who is currently working for another company in H-1B status. Do we have to file a new H-1B application before this person can work for our company? If so, how long do we have to wait until he can start work?
A. Yes, your company will have to file a new H-1B petition for this person before he can work for you because his existing H-1B status only permits him to work for his current employer.
The good news is that you will not have to wait until the H-1B petition has been approved before he can begin working for your company. Under the American Competitiveness in the 21st Century Act, an H-1B employee can change employers and begin employment with the new employer as soon as the H-1B petition has been filed.
The ability to start working as soon as the new petition has been filed and is pending with U.S. Citizenship and Immigration Services is referred to as the “H-1B portability” provision.
In order to take advantage of the H-1B portability provision, the person must have been lawfully admitted to the United States in valid nonimmigrant status (such as H-1B, F-1, etc.), he must not have been employed without authorization at any time, he must have previously held H-1B status or been issued an H-1B visa, and the H-1B petition must be filed by your company prior to the expiration of his authorized stay.