The most common form of employment on an H-1B visa in the U.S. is full-time employment with a single employer. However, the regulations permit “concurrent employment.” This means that more than one employer can engage the services of an H-1B worker in certain circumstances. An H-1B petition filed to authorize an H-1B worker to be employed in another job concurrent with his current H-1B employment, is commonly referred to as a “Concurrent H-1B.”
The second employer who seeks to engage the H-1B worker in concurrent employment must go through the entire H-1B process as well as convince the USCIS that the employee is eligible for an H-1B and that the second job is a specialty occupation. This means that the employer must also pay the prevailing wages for a job code that is appropriate to the concurrent position. The second employer must initiate the application by filing a Labour Condition Application (LCA) attesting to these and other H-1 requirements.
The concurrent H-1B employment need not fall under the same specialty occupation as that of the applicant’s first employment.
A concurrent H-1B cannot be filed at the time of the initial H-1B selection for that employee that would be subject to the annual cap and the employer needs the employee’s services for a full-time job, which generally involves 35-40 hours of work a week. The employee may file a concurrent H-1B petition after the employee has an approved H-1B petition and the individual enters the U.S. in valid H-1B status.
There is no limit on the number of concurrent H-1Bs an employee can hold. But the cumulative hours that the employee will work must be plausible and possible.
One of the most important points to remember is that while H-1B employees are not permitted to work under contract, part-time employees, who do not need a visa sponsor, frequently do so. Thus, to maintain concurrent visa status, an employer-employee relation is crucial. It is therefore advisable to make sure foreign nationals are retained on the employer’s payroll and have a W-2 to confirm their employment with respective employers.
The USCIS does not require the primary sponsoring company be informed about the applicant’s H-1B concurrent employment. However, the second employer must specifically select “Concurrent Employment” in Form I-129 when filing the H-1B petition for concurrent employment.
One of the major concerns most H-1B applicants have is whether they can hold their second employment even if they have left or have been terminated from the original sponsoring company. It is important to note here that the non-immigrant will continue to maintain his H-1B status and can continue to work for the second employer irrespective of any changes in his first employment.
While this is a good avenue for a lot of H-1B visa holders to earn more and improve their financial status, having an approved H-1B petition does not automatically result in an approval of the concurrent H-1B petition.
With inputs from Manizeh Mistry, Associate Partner at LawQuest.
