The H1B visa program in the United States allows employers to hire foreign workers in specialty occupations. This visa category is divided into two segments: CAP-Subject and CAP-Exempt. Understanding the nuances of concurrent employment—holding more than one job under the H1B status—is crucial for those currently working for a CAP-exempt employer but looking to expand their professional horizons with a CAP-subject employer. We explain concurrent H1B visas in this scenario here.
What is Concurrent Employment?
Concurrent employment for H1B visa holders refers to multiple employers employing an individual simultaneously. This arrangement is allowed under U.S. immigration law, but it comes with specific requirements and conditions that must be met to ensure compliance. Each employer must file a separate H1B petition for the same employee, which must be approved by the U.S. Citizenship and Immigration Services (USCIS). Additionally, the terms and conditions of employment, including job roles, responsibilities, and salary, must be clearly defined and adhered to for each employment arrangement. It’s crucial for H1B visa holders and their employers to carefully follow these regulations to maintain lawful status and avoid any potential legal issues.
CAP-Exempt vs. CAP-Subject Employers
When discussing H1B visa employment, it’s essential to understand the distinction between CAP-exempt and CAP-subject employers.
- CAP-exempt employers are typically non-profit organizations, institutions of higher education, affiliated non-profit entities, and governmental research organizations. Employment with these types of employers does not count towards the annual H1B visa cap, which is the limit set by the U.S. government on the number of H1B visas issued each fiscal year. Specifically, non-profit entities affiliated with universities, non-profit research organizations, and government research institutions can hire H1B workers without being subject to the cap. This exemption allows these employers to bypass the competitive lottery system that CAP-subject employers must navigate. It enables them to hire international talent year-round without worrying about the annual limit.
- On the other hand, CAP-subject employers are typically for-profit businesses and entities that do not qualify for the exemptions mentioned above. These employers are subject to the annual H1B visa cap, which currently stands at 65,000 for regular petitions, with an additional 20,000 visas available for individuals who hold a U.S. master’s degree or higher. These employers must participate in a lottery each year if the number of H1B petitions exceeds the cap, which often happens given the high demand for skilled foreign workers. This means that even if an employer finds a suitable candidate and files an H1B petition, there is no guarantee that the petition will be selected for processing if the cap has been reached.
Understanding the differences between CAP-exempt and CAP-subject employers is crucial for employers and prospective H1B visa holders, as it influences the timing, strategy, and likelihood of successfully obtaining an H1B visa.
Legal Requirements for Concurrent H1B Employment
Several legal requirements must be met for H1B visa holders engaged in concurrent employment to ensure compliance with U.S. immigration laws.
- Separate H1B Petitions: Each employer must file a separate H1B petition on behalf of the employee. If an H1B worker wants to work for multiple employers simultaneously, each employer must independently submit an H1B petition to the United States Citizenship and Immigration Services (USCIS). This petition must be part of the regular H1B visa cap for CAP-subject employers unless the beneficiary has already been counted against the cap within the past six years. If the employee has been counted against the cap previously, subsequent petitions for new concurrent employment by CAP-subject employers can be filed without being subject to the annual cap.
- Approval by USCIS: Each H1B petition filed by the employers must be approved by USCIS. Approval is necessary for the employee to work legally for each employer. The approval process for each petition is independent, meaning that the approval of one petition does not impact the status of others. For instance, if an employee has concurrent employment with a CAP-exempt and a CAP-subject employer, the approval of the CAP-subject petition does not influence the CAP-exempt employment and vice versa. Each petition must meet the specific requirements and be independently adjudicated by USCIS.
- Compliance with Terms and Conditions: The H1B employee must adhere to the terms and conditions outlined in each approved petition. This includes complying with each employer’s specified job duties, work locations, and wage requirements. Employees must fulfill the roles and responsibilities described in the H1B petitions and ensure they work at the places mentioned. Additionally, the employers must pay the employee the prevailing wage or the actual wage, whichever is higher, for the respective job positions. Any changes in employment conditions, such as changes in job roles, work locations, or significant changes in salary, require filing an amended petition with USCIS to reflect these changes.
Understanding these legal requirements is crucial for H1B visa holders and their employers to ensure that concurrent employment arrangements comply with U.S. immigration regulations. Failure to comply with these requirements can lead to issues with the employee’s H1B status and potential legal repercussions for the employers involved.
Conclusion
Concurrent employment for H1B visa holders offers a valuable opportunity for expanding work experience and enhancing career prospects in the United States. However, it requires careful planning, strict adherence to immigration laws, and effective coordination between all parties involved. Each employer must file a separate H1B petition and gain USCIS approval, while both the employee and employers must comply with the specified job duties, work locations, and wage requirements. Please speak with one of our experienced immigration lawyers for assistance with your H1B visa.
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