H-1B transfer hiring: how a new employer takes over an H-1B worker in 2026

An "H-1B transfer" is not a transfer at all: the new employer files its own H-1B petition. It gets a certified Labor Condition Application (LCA) from the Labor Department, files Form I-129 with USCIS, and, under H-1B portability, the worker may start as soon as the petition is properly filed or on the requested start date, whichever is later. A worker who was already counted against the H-1B cap generally does not go through the lottery again. As of November 2026, Labor Department rules put the LCA and petition costs on the employer, and USCIS says the $100,000 payment does not apply to a granted extension of stay for someone already in the United States.

This guide is for the recruiter, agency or hiring manager making the offer. The Form I-9 side, including the "AC-21" notation, is covered in Form I-9 for H-1B workers, and the interview questions in work authorization questions in interviews.

What makes a worker eligible to start on filing?

Portability comes from section 214(n) of the Immigration and Nationality Act, implemented at 8 CFR 214.2(h)(2)(i)(H). The worker must:

• have been lawfully admitted in, or otherwise given, H-1B status;
• be the beneficiary of a non-frivolous petition for new employment filed before their authorized period of stay expires; and
• not have worked without authorization from their last admission until the petition is filed.

The authorization lasts until USCIS decides the petition. USCIS's H-1B page explains the outcomes: if the new petition is approved, the worker works for you for the period on the approval; if it is denied, portability ends, and the worker may go back to the previous employer only if that earlier authorization is still valid. A worker can also start a second new job on another portability petition while the first is still pending, under the successive-petition rules in the same paragraph.

What are the steps, and how long do they take?

1. Decide to sponsor and bring in counsel. The decision belongs to the business, made the same way for every candidate who needs sponsorship.
2. Post the LCA notice. Without a union representative, the employer posts notice of the LCA, in hard copy in two conspicuous places at each place of employment or electronically, on or within 30 days before filing it, under 20 CFR 655.734. The rule covers each place of employment "whether such place of employment is owned or operated by the employer or by some other person or entity," which reaches client sites for staffing firms.
3. Get the LCA certified. The Labor Department's Certifying Officer decides within 7 working days of receiving a complete LCA, under 20 CFR 655.740.
4. File Form I-129 with the certified LCA. Premium processing is available for H-1B petitions, at a fee of $2,965 since the March 1, 2026 increase.
5. Set the start date on or after the filing date and the start date requested on the petition.
6. Onboard. Complete a new Form I-9 and, if you use E-Verify, a new case; it is a new hire for you.
7. On approval, record the new Form I-94 on Supplement B; see I-9 reverification.

Coordinate the last day at the old employer with your filing date. A worker who stops working there and waits for your filing is relying on the grace period described below.

Who pays, and what does it cost as of November 2026?

The amounts come from the USCIS fee schedule and its H and L fee page, which lists a change of H-1B employer as requiring the ACWIA fee. The Public Law 114-113 fee is what DHS calls the 9-11 Response and Biometric Entry-Exit Fee; a final rule effective September 9, 2026 requires covered employers to pay it on all H-1B petitions, including extensions, except amended petitions that do not extend status.

The Labor Department's rules decide who bears the cost. Under 20 CFR 655.731(c)(9), attorney fees and other costs of preparing and filing the LCA and petition are the employer's business expenses and may not reduce the worker's pay below the required wage, and under paragraph (c)(10)(ii) the worker may not pay any part of the additional fee under INA section 214(c), directly or indirectly. For a worker who is in the United States when the petition is approved, required pay starts no later than 60 days after the worker becomes eligible to work for you (the date of need on the approved petition, or the status change if later), even if they have not started, under paragraph (c)(6)(ii), and paragraph (c)(7) requires pay for nonproductive time caused by the employer.

The $100,000 payment

Proclamation 10973 attached a $100,000 payment to certain new H-1B petitions, and Proclamation 11069 extended it to September 21, 2027. USCIS's H-1B page says it applies to petitions for beneficiaries outside the United States without a valid H-1B visa, and does not apply to a petition for someone inside the United States that requests an amendment, change of status or extension of stay when USCIS grants that request. A change-of-employer petition for a worker already here is normally filed with an extension of stay. USCIS adds that the payment does apply if it finds the worker ineligible for the extension, for example because they are not in valid status, or if the worker departs before a decision. USCIS also reports that a federal district court vacated its implementing guidance on June 8, 2026, in State of California v. Mullin, that the First Circuit denied a stay on July 24, 2026, and that it will comply while DHS considers next steps. On September 30, 2026, a second court, in Global Nurse Force v. Trump (N.D. Cal.), vacated the agencies' policies and barred enforcing them under both proclamations until notice-and-comment rulemaking is done. Check the USCIS alert before every filing; the full picture is in the $100,000 H-1B fee.

What if the candidate was laid off?

Under 8 CFR 214.1(l)(2), an H-1B worker whose job ends keeps status for up to 60 consecutive days, or until the end of the authorized validity period if sooner, once per validity period, and may not work during it. USCIS lists finding new employment as one use of that time. Ask your attorney to confirm the dates before you set a start date, because a filing after the window closes is not a portability case.

On September 11, 2026, DHS proposed removing this grace period. Comments close November 10, 2026; the current rule applies unless a final rule is published.

Does the worker need a new lottery selection?

Usually not. A change-of-employer petition for a worker who was already counted against the cap is not a new cap case. The exception is a move from cap-exempt employment, such as a university or nonprofit research organization, to a cap-subject employer: under 8 CFR 214.2(h)(8)(iii)(F), a worker whose cap-exempt employment ends becomes subject to the cap if not previously counted within the six-year period, and USCIS's H-1B page says the new employer must then register and be selected first. A worker may keep a cap-exempt job and add concurrent cap-subject work in some cases; ask counsel.

What if the worker has a green card case in progress?

• Time beyond six years. USCIS allows H-1B extensions past the sixth year if a labor certification or immigrant petition was filed at least 365 days earlier, or if the worker has an approved EB-1, EB-2 or EB-3 petition and is waiting only because of visa limits, as its H-1B page explains.
• The labor certification does not move. A permanent labor certification is valid only for the particular job, worker and area of employment, under 20 CFR 656.30(c)(2), so a new employer that sponsors a green card runs its own process; see PERM recruitment requirements.
• The priority date usually does. An approved EB-1, EB-2 or EB-3 petition gives the worker its priority date for later petitions, except where approval is revoked for fraud, error or an invalidated labor certification, under 8 CFR 204.5(e).

What may recruiters ask, and when do documents come in?

Ask the two questions every candidate gets: authorized to work, and need for sponsorship now or later. Justice Department technical assistance letters from 2013 and 2010 say H-1B holders are not protected from citizenship status discrimination, so an employer may decline to hire someone because they need sponsorship and may say in postings that it will not sponsor. A second 2013 letter adds a limit: asking about the impending expiration of someone's documents, or rejecting a document because of a future expiration date, may violate the law depending on the facts, and every work-authorized person is protected from national origin discrimination and document abuse. These letters are guidance, not binding opinions.

In practice, keep approval notices, I-94 records and status history out of the interview. Once the business has decided to sponsor, the immigration attorney collects what the petition needs. For the wording of a posting, see visa sponsorship language in job postings.

A transfer-hire checklist

• Confirm the candidate needs sponsorship with the standard question, not by asking for documents.
• Engage counsel before the offer goes out; build the LCA posting and certification time into the start date.
• For agency placements, make sure the LCA notice is posted at the client worksite.
• Budget the LCA and petition costs as company costs; never recover them by cutting the worker's pay below the required wage, and never take any part of the ACWIA fee from the worker.
• Set the start date on or after the filing date; do not let the worker start early.
• Complete a new Form I-9 and E-Verify case, and add Supplement B when the approval arrives.