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If I have H-1B status through a cap-exempt employer, can I apply for a concurrent H-1B with a cap-subject employer?

By January 11, 2017May 18th, 2021H-1B and E-3 Visa, Immigration

The H-1B is a non-immigrant status that permits companies to hire workers in specialty occupations. While the H-1B is a good option for many individuals seeking employment in the United States, the ability to obtain one depends partly on luck as there is a limit to the number of H-1B visas that can be issued each year. This limit is known as the “cap”.   Generally speaking, if you obtain a H-1B that is subject to the cap and you leave that employer, you can apply for another H-1B that will not be subject to the limit or H-1B cap.

For more information on H-1B visas, please click here.

Some employment is considered statutorily “cap-exempt” which means that the visa is not counted against these numerical limitations. Specifically, employment with an institution of higher education, nonprofit research organizations, or government research organization is not subject to the cap. Additionally, nonprofit organizations that are related or affiliated with institutions of higher education are also not subject to the cap.

So what if you are working for a cap-exempt employer, and then get an additional job offer from an employer that is cap-subject? For example, imagine that you are working at a University as a dentist under a cap exempt H-1B. You are then offered a part-time job at a private dental office to work where that employer would be subject to the cap. In this case since you are already working in H-1B status at a cap-exempt employer, you are eligible to seek an additional job with a cap-subject employer through filing a concurrent H-1B petition. While this second employer would normally be subject to the cap and as such normally unable to hire you, since you are already working at a cap-exempt employer, you will not be subject to the cap for this additional employer.

Can I continue my employment with a cap-subject employer if I stop working at the cap-exempt employer?

It is important to know that you can only work for the cap-subject employer at the same time that you work for your cap-exempt employer. Your employment with the cap-subject employer cannot extend beyond the validity of your cap-exempt employment. Therefore, if your cap-exempt employment ends, you are no longer eligible to work at the cap-subject employer.  The only option in this case would be that the cap-subject employer would have to file a new H-1B petition and be subject to the cap. (and of course subject to the April 1 timing and any H-1B lottery)  Going back to our example, if you stop working for the cap-exempt University, you would no longer be able to work at the private dental office. The dental office (or any other future employer) would have to petition for you, and that petition’s approval is subject to there being a visa available as it will be subject to the H-1B cap.


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