Concurrent employment for a cap-subject and cap-exempt employer

H-1B visa is a non-immigrant visa that permits a US company to hire workers in specialty occupations .  If you are currently working for a cap-exempt employer, you can also concurrently work for a cap-subject employer, and the cap-subject employer does not have to go through the H1b lottery process. This blog post will summarize the procedure.

• Cap-exempt employers such as institutions of higher education or non profit organizations or government organizations, (these employers can sponsor you for an H1b visa at any time and don’t have to go though the H1b lottery process), or
• Cap-subject employers: these employers have to go through the H1b registration lottery process (they need to file an H1b registration in March, and if selected, can then file an H1b petition with USCIS).

You are currently working full-time for a Cap-Exempt employer such as a University. This employer never had to go through the H-1B registration process. You would now like to start working part time (in addition to your full-time employment) for a cap-subject employer (such as a start-up). Will you be able to do this? Does the new employer have to wait until March and does the employer have to go through the H1b lottery?

The short answer is that the new cap-subject employer can file a petition for concurrent H1b employment at any time and does not have to go through the H1b lottery process. The important things to keep in mind are:

1. Your employment with the H-1B cap-subject employer has to continue after the concurrent petition is approved, and
2. You must reasonably be able to concurrently perform the work described in each employer’s positions.

Your employment with the cap-exempt employer is part time (20 hours per week) and the cap-subject employment will be also part-time (20 hours per week). This is fine, as if you work 20 hours per week for each employer, you can reasonably concurrently perform the work for each employer.

Your employment with the cap-exempt employer is full time (40 hours per week) and the cap-subject employment will be part-time (15 hours per week). This should be fine as you can reasonably work for both employers.

Your employment with the cap-exempt employer is full time (40 hours per week) and the cap-subject employment will be also full-time (40 hours per week). Here, USCIS may argue that you may not be able to continue performing work for each employer if the plan is to work full-time for both.

One important thing to keep in mind is, that the validity of the concurrent H1b petition is dependent on validity of the cap-exempt petition. For example, if your cap-exempt approval is until December 1, 2022 (and you want to file the concurrent cap-subject H1b petition in July 2022), the concurrent petition would only be valid until December 1, 2022.

In all the scenarios above, you need to keep working for the cap-exempt employer – if you want to stop working for the exempt employer and just work for the cap-subject employer, the cap-subject employer would have to go though the H1b lottery process.

The employee can start working for the new H-1B cap-subject employer upon the Receipt of the H1b petition. This is called H-1B portability.

To take advantage of the H1b portability, you will need to meet the following requirements:

• You were lawfully admitted in the US in an H1b status,
• You were not employed without authorization from the time of last admission, and
• The new H1b employer is filing a non-frivolous petition