The H-1B visa is a cornerstone of employment-based immigration in the United States. However, its lottery-driven cap often leaves qualified foreign professionals and their employers searching for alternatives to help them stay in the U.S and continue building their careers.
A little-known fact is that foreign professionals can work for more than one employer while maintaining H-1B status, via the Concurrent H-1B - a way to hold multiple H-1Bs simultaneously. In this article, we’ll break down how concurrent H-1Bs work, their benefits, and how concurrent H-1Bs when paired with cap-exempt employment can provide innovative new immigration pathways for foreign professionals and their companies.
What Is a Concurrent H-1B?
An H-1B visa holder working with a primary employer can accept an additional position from a secondary employer through an additional H-1B known as a concurrent H-1B. Each employer files a separate H-1B petition on behalf of the employee, resulting in the visa holder having multiple H-1Bs while working with different employers.
Eligibility Criteria
To qualify for a concurrent H-1B position, several criteria must be met:
- Specialty Occupation: The second position must qualify as a specialty occupation, requiring specialized knowledge and at least a bachelor's degree or its equivalent in a related field.
- Valid H-1B Status: The worker must already be in valid H-1B status with an existing employer.
- Separate Employer: The concurrent position must be with a different employer than the one holding the original H-1B petition.
- Labor Condition Application (LCA): The new employer must file a separate LCA with the Department of Labor, attesting to pay the prevailing wage and meet other labor standards.
Application Process
The process for obtaining a concurrent H-1B is similar to the standard H-1B application, with some key differences:
- Job Offer: Secure a job offer from the new employer willing to sponsor the concurrent H-1B.
- File a New LCA: The new employer must file an LCA specifically for the concurrent position.
- H-1B Petition Filing: Submit a new Form I-129 petition for the concurrent H-1B employment. In the petition, it is crucial to indicate that this is a concurrent employment situation.
- Begin Work Upon Receipt: Under certain circumstances, the employee may begin working for the new employer upon the receipt of the H-1B petition by USCIS, under the portability provisions.
Benefits of H-1B Concurrency
- Career Advancement: Working in multiple roles might allow foreign nationals to expand their experience, skills, and professional network.
- Supplementary Income: Additional employment can lead to increased earnings.
- Flexibility: Provides options if one employment ends; the worker may continue under the other H-1B employment.
- Alternative Immigration Pathways: Concurrent H-1Bs open up opportunities for creative immigration pathways, such as the concurrent, part-time, & cap-exempt H-1B pathway.
Cap-exempt H-1B Pathways through Concurrent Employment
Concurrent H-1Bs can be Cap-Exempt
Concurrent H-1Bs may or may not need to go through the H-1B lottery, depending on the cap-exempt status of the primary employer:
- Concurrent Cap-Subject H-1B: If the primary employer is subject to the H-1B cap, the concurrent H-1B has to go through the H-1B lottery process.
- Concurrent Cap-Exempt H-1B: If the primary employer is an H-1B cap-exempt employer, the concurrent H-1B does not have to go through the H-1B lottery process, even if the secondary employer is traditionally cap-subject (e.g, for-profit employers). This is outlined in 8 CFR 214.2(h)(8)(iii)(F)(6).
Concurrent H-1Bs can be Part-Time
A foreign national’s H-1B employment does not need to be full-time, and can be part-time as outlined in 20 CFR 655.730(c)(6). This is permissible for concurrent H-1Bs with multiple employers.
- Multiple employers: The visa holder can work part-time for their primary employer, while working full-time with their secondary employer, or vice versa.
- No regulatory minimum hours: There is no regulatory minimum for the number of hours worked in a part-time H-1B role, offering flexibility in scheduling and workload.
This is beneficial for professionals who wish to diversify their experience working on multiple jobs, or gradually transition between jobs, while balancing time. They might work for 5 hours a week with one employer, while doing full-time work for another employer through concurrent H-1Bs.
Concurrent, Part-time, & Cap-Exempt H-1B
Perhaps the biggest benefit to companies and foreign nationals come when H-1B concurrency is paired with both part-time & cap-exempt employment, unlocking entirely new pathways for immigration.
In this setup, foreign nationals can secure a part-time H-1B position for 5 hours a week with a cap-exempt organization, allowing their full-time employer to file a concurrent H-1B without the restrictions of the annual H-1B lottery.
Benefits:
- Providing stability to immigration status - no need to worry about the uncertainty of the annual visa lottery.
- Can be obtained at any time during the year, not just during the lottery season.
- Allows employers to retain key foreign employees if they were not selected in the H-1B lottery.
Combining the advantages of H-1B cap-exempt employment with the flexibility of part-time work can create a robust alternative pathway to the H-1B lottery for foreign nationals.
The Build Fellowship leverages this part-time, cap-exempt & concurrent H-1B structure to create pathways for foreign professionals to remain employed without the uncertainty of the lottery. Through our fellowship, foreign nationals take on a part-time position leading university students through industry projects in their specialized field. This qualifies them for a part-time cap-exempt H-1B and allows their main cap-subject employer to file a concurrent cap-exempt H-1B, without the uncertainty of the lottery. Learn more here.
The Build Fellowship
How We Utilize Concurrent Cap-Exempt H-1Bs to Support Foreign Nationals
The Build Fellowship leverages the flexibility of concurrent, part-time, & cap-exempt H-1Bs to provide foreign professionals with a seamless pathway to continue their careers in the United States if they were not selected in the H-1B lottery.
Our fellowship program helps foreign nationals obtain cap-exempt H-1B visas through 5 hours of part-time work leading university students through industry projects, allowing their primary employers to retain them by filing for a concurrent H-1B without the uncertainty of the lottery.
Benefits for Fellows
- Lottery-Free H-1B: If a foreign professional missed the H-1B lottery, our fellowship programs provide cap-exempt H-1Bs which supports concurrent H-1B eligibility.
- Part-Time Role: The fellowship program requires just 5 hours commitment weekly, allowing fellows to remain fully committed to their full-time employment.
- Leadership Development: Provide opportunity for fellows to gain leadership experience by leading students in industry projects in their specialized field.
FAQ: Common Questions About Concurrent H-1B Visas
1. Can I work for more than two employers on a Concurrent H-1B?
Yes, it’s possible to work for more than two employers. Each additional employer must file an H-1B petition for the concurrent employment, and you must maintain valid status with each.
2. Do both employers have to be cap-exempt?
No. If the first employer is cap-exempt (e.g., a university or nonprofit research organization), the second employer does not need to go through the H-1B lottery even if they are not cap-exempt.
3. What happens if my primary H-1B job ends?
If your primary job ends, your concurrent position may still be valid, but it’s essential to consult with an immigration attorney. The concurrent H-1B remains active as long as the conditions of that employment are maintained.
4. What happens to my concurrent H-1B if my primary employer files for an adjustment of status?
If your primary employer files for an adjustment of status (e.g., through a green card application), it does not necessarily affect your concurrent H-1B role. The concurrent H-1B remains valid as long as its specific terms are upheld. However, the adjustment process may require additional documentation or updates to reflect your employment with multiple employers. It’s important to inform the primary employer and work with an immigration attorney to align your adjustment application with your concurrent employment.
5. Can I switch employers while holding a concurrent H-1B?
Yes, you can switch employers while holding a concurrent H-1B, but the new employer must file a fresh H-1B petition for concurrent employment. If the original concurrent H-1B employer is retained, you can maintain both positions, or you can choose to drop one while transitioning to the new role. Ensure all petitions are filed correctly and timely to maintain lawful status during the transition.
6. What happens if my cap-exempt employer loses their cap-exempt status?
If your cap-exempt employer no longer qualifies as cap-exempt (e.g., due to organizational changes), you may lose the cap-exempt benefit for both the primary and concurrent H-1Bs. This could require transitioning to a cap-subject role, which may involve participating in the H-1B lottery. It’s critical to monitor your employer’s cap-exempt status and have contingency plans in place.
7. Can I travel internationally while working under a concurrent H-1B?
Yes, you can travel internationally while holding a concurrent H-1B. However, you must have a valid H-1B visa stamp in your passport for reentry. If you have multiple H-1Bs, you must clearly articulate your concurrent employment during visa interviews or at the port of entry. Bring supporting documentation, such as approval notices for all H-1Bs and letters from both employers.
Conclusion
The Concurrent H-1B option provides a viable path for foreign professionals to expand their career opportunities in the U.S., offering flexibility that a standard H-1B alone may not provide. Through options like The Build Fellowship, professionals can secure part-time cap-exempt roles that make them eligible for concurrent employment without relying on the H-1B lottery. Whether you're an H-1B holder looking for more flexibility or seeking a way to stay in the U.S. despite missing the lottery, exploring a concurrent H-1B could be the right step forward.
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