How to Work for a Cap-Subject H-1B Employer Even if You Didn’t Get an H-1B in the Lottery
If you’re aiming for an H-1B visa but didn’t get selected in the lottery, working for a cap-subject H-1B employer is still possible. Suppose you’re employed by a cap-exempt employer (like a nonprofit or research institution). In that case, you may qualify for concurrent H-1B employment with a cap-subject employer without going through the lottery process again. Here’s how this pathway works, who qualifies, and what you need to know.
Understanding Cap-Exempt H-1B Employers
First, let’s clarify what a cap-exempt employer is. Cap-exempt H-1B employers include:
- Institutions of higher education (universities and colleges)
- Nonprofit organizations affiliated with universities
- Nonprofit research organizations
- Governmental research organizations
If employed by one of these organizations, you may receive an H-1B visa without being subject to the annual H-1B lottery. This is because these employers are exempt from the yearly H-1B cap.
What is Concurrent H-1B Employment?
Concurrent H-1B employment allows individuals to hold multiple H-1B positions simultaneously. For example, if you have an H-1B through a cap-exempt employer, you may also work for a cap-subject employer. Here’s the advantage: the cap-subject employer can apply for an H-1B for you without requiring lottery selection. This approach can allow you to work in private industry or at companies otherwise subject to the cap while maintaining your position with the cap-exempt organization.
Eligibility for Concurrent H-1B Employment
To be eligible for this, you must:
- Have an H-1B visa with a cap-exempt employer: You need an existing H-1B with a qualifying cap-exempt organization.
- Apply for a separate H-1B with the cap-subject employer: The cap-subject employer will file a new H-1B petition under the concurrent employment category.
This setup lets you balance both roles, provided that you fulfill the terms and responsibilities of each position as outlined by each employer.
Steps for Concurrent H-1B Application
- Obtain Support from the Cap-Subject Employer: The Cap-subject employer files a concurrent H-1B petition on your behalf, showing that your work with the Cap-exempt employer is still ongoing.
- Provide Evidence of Cap-Exempt Employment: Demonstrate that a cap-exempt organization actively employs you to support your concurrent H-1B request.
- Submit the H-1B Petition for Concurrent Employment: The cap-subject employer submits Form I-129, Petition for a Nonimmigrant Worker, to USCIS, specifying concurrent employment.
Advantages and Important Considerations
- Flexibility: This option allows you to diversify your work experience by simultaneously working in both nonprofit and private sectors.
- Avoid the H-1B Lottery: Since you’re already with a cap-exempt employer, the cap-subject employer can add you to their workforce without a lottery selection.
- Maintain Cap-Exempt Employment: You must continue working with your cap-exempt employer, as your eligibility for concurrent H-1B status depends on this ongoing employment.
Things to Keep in Mind
- Labor Condition Application (LCA): Each employer (cap-exempt and cap-subject) must file an LCA for their specific position.
- Termination of Cap-Exempt Employment: If your cap-exempt employment ends, the concurrent H-1B with the cap-subject employer may also end. At that point, you would need to go through the H-1B lottery process to continue working for the cap-subject employer.
Conclusion
Working with a cap-exempt H-1B employer can provide unique access to cap-subject positions, allowing you to gain valuable experience and expand your career options even if you missed the H-1B lottery. By leveraging concurrent H-1B employment, you can legally work with a cap-subject employer without worrying about the lottery. Ensure you work closely with both employers’ HR departments to stay compliant, and you can enjoy the best of both sectors in your professional life.
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