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HR Guide: Concurrent H-1B Employment

Can I hire an employee on a concurrent H-1B?

Yes. Concurrent H-1B is possible under certain conditions and subject to USCIS approval.



Concurrent H-1B Employment

What is concurrent H-1B Employment?

Concurrent H-1B is the practice of holding multiple H-1B jobs with different employers at the same time.


Unlike traditional H-1B employment, where an individual is employed by only one employer, concurrent H-1B status allows workers to engage in multiple roles, provided that each employer files a separate H-1B petition.



What are the requirements for a concurrent H-1B?

The concurrent H-1B does not differ from any other H-1B petition. Company #2 is still required to:

  • Establish a real employee/employer relationship

  • Ensure the wage requirements are being met as per the prevailing wage assessment

  • And that the position is a specialty occupation requiring at least a Bachelor’s degree in a field related to the position to be taken


Approval of the second H-1B petition must be received before an individual can start working for the new employer.



Can the employee work full-time?

Technically, yes. There is no limit on how many hours an employee may work. However,

USCIS might reject the petition if they deem it impossible to work two full-time jobs at the same time.

Tip: For the employer hiring an employee using a concurrent H-1B, the recommendation is generally to hire it part-time (20 hours) or just a little more than that, to ensure the amount of hours worked per week is feasible and realistic.



Does the current position need to match the position of the previous employer?

No. The positions don't need to match and can be different. As long as the concurrent position satisfies the H-1B requirement, the foreign national employee can work on the position.



Can I engage the foreign worker as a Contractor or Consultant on a concurrent H-1B?

No, the employee must be a W2 employee.



If the candidate currently works for a cap-exempt employer, can I still file for concurrent H-1B as a cap-subject employer?

Yes

It is possible to work for both cap-exempt employer and cap-subject employer simultaneously, provided the candidate fulfills the specific H-1B requirements (as listed above) for each job.



Different employer combinations

Current Employer Type

Prospect Employer Type

Requires H-1B cap selection?

Cap exempt

Cap subject

No

Cap subject

Can subject

No

Cap subject

Cap exempt

No

Cap exempt

Cap exempt

No



Does the current employer need to know about the prospect's concurrent employment?

USCIS does not require the current employer to be told about the concurrent employment.



Can the candidate continue working for the concurrent employer if they cease their current employment?


Working originally for Cap Exempt Employer:

If the candidate is currently working for a cap-exempt employer and after getting their concurrent H-1B approved they decide to cease employment with the cap-exempt employer, they must also cease employment with the cap-subject employer.


Working originally for Cap-Subject Employer:

If the candidate is currently working for a cap-subject employer and starts working for another cap-subject employer, they do not need to stop working for the second employer when they stop working for the primary employer.



In conclusion

Concurrent employment under the H-1B visa can offer many benefits for both employees and employers. However, when planning to apply for concurrent H-1B status for a candidate, it is important to understand the rules and restrictions of this type of employment. Additionally:

It is crucial to be realistic about the hours the candidate can work each week considering other commitments and the company's business needs




 

Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a WayLit-affiliated attorney or another qualified professional.

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