How soon do I have to join my H1B employer?

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The USCIS regulations do not specify a set interval by which a new H1B must join his or her employer. The Department of Labor regulations, however do provide some guidance.

20 CFR 655.731(c)(6)(ii) Even if the H-1B nonimmigrant has not yet "entered into employment" with the employer (as described in paragraph (c)(6)(i) of this section), the employer that has had an LCA certified and an H-1B petition approved for the H-1B nonimmigrant shall pay the nonimmigrant the required wage beginning 30 days after the date the nonimmigrant first is admitted into the U.S. pursuant to the petition, or, if the nonimmigrant is present in the United States on the date of the approval of the petition, beginning 60 days after the date the nonimmigrant becomes eligible to work for the employer. For purposes of this latter requirement, the H-1B nonimmigrant is considered to be eligible to work for the employer upon the date of need set forth on the approved H-1B petition filed by the employer, or the date of adjustment of the nonimmigrant's status by DHS, whichever is later. Matters such as the worker's obtaining a State license would not be relevant to this determination.

In the case of someone who does not hold H1B status, this means that the employer's obligation to pay wages begin on the day the employee made himself or herself available for work or otherwise came under the employer's control, following the approval of the H1B petition. In the case of someone who already holds H1B status, employer's obligation to pay wages begins on the day the employee makes himself or herself available for work or otherwise comes under the employer's control after the new employer filed a nonfrivolous petition under the portability provisions of the AC21 legislation.

The law is clear that the employer incurs a definite legal obligation to begin paying the H1B employee no later than the first day following the expiration of the appropriate interval - even if the foreign national has not yet started working for the sponsoring employer. If an employer is unable or unwilling to do this, then they must make a timely revocation of the LCA and the H petition. Unless they effect timely revocations, then they have no choice but to begin paying the H1B foreign national. For more information on this specific subject, please click here.

Whether failure to begin work within the appropriate 30 or 60 day interval is a basis for determining that the foreign national is in unlawful status is not set out in the law. While the USCIS may decide that an H1B has failed to maintain status if he or she does not begin work within the appropriate interval, it is almost certain that they will make this determination if the foreign national waits beyond the appropriate interval to start working.